Pre-Censorship of Films – Principles Reiterated

In the several decisions handed down involving the censoring of documentary and feature films, the Supreme Court has interpreted the provisions of the Cinematograph Act, 1952 (“CA”), the Guidelines under Section 5-B thereof in light of Articles 19 (1) (a) and 19 (2) of the Constitution of India. One of the early cases on film censorship decided by the Supreme Court was K.A. Abbas versus Union of India. The film in question was a documentary titled “A tale of Four cities?. The Court held that “Censorship of films including prior restraint is justified under our Constitution” and proceeded to explain.

“The task of the censorship is extremely delicate and his duties cannot be the subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censorship must make a substantial allowance in favor of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationships as banned in toto and forever from human thought and must give scope for talent to put them before society. The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal from and the line are to be drawn where the average man or moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman’s legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth.” Further, the Supreme Court in K.A. Abbas emphasized that the mere portrayal of a social vice would not attract the censorship scissors. It was held:” Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the censorship scissors but how the theme is handled by the producer. It must, however, be remembered that the cinematograph is a powerful medium and its appeal is different. The horrors of war as depicted in the famous etchings of Goya do not horrify one so much as the same scenes rendered in color and with sound and movement, would do.”

In Ramesh versus Union of India, the challenge was to the telecast of a film “Tamas” which depicted the violence, killing and looting that took place during the partition of the country. The Supreme Court agreed with the observations of Justice Vivian Bose in Bhagwati Charan Shukla versus Provincial Government, that: “the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating minds, not of those who scent danger in every hostile point of view”. It was further observed: “if some scenes of violence, some nuances of expression or some events in the film can stir up certain feelings in the spectator, an equally deep, strong, lasting and beneficial impression can be conveyed by scenes depicting mutual respect and tolerance, scenes showing comradeship, help and kindness which transcend the barriers in religion.”

It was held that “viewed in its entirety” the film was “capable of creating a lasting impression of this message of peace and co-existence and that people are not likely to be obsessed, overwhelmed or carried away by the scenes of violence or fanaticism shown in the film.

“Freedom of expression which is legitimate and constitutionally protected cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself”.

In Life Insurance Corporation of India versus Prof. Manubhai D. Shah,  the Supreme Court underscored that the restrictions in Article 19 (2) on the freedom under Article 19 (1) (a) had to be interpreted strictly and narrowly It was held: “But since permissible restrictions, albeit reasonable, are all the same restrictions on the exercise of the fundamental right under Article 19(1)(a), such restrictions are bound to be viewed as anathema, in that, they are in the nature of curbs or limitations on the exercise of the right and are, therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on the authorities that seek to impose them.

The burden would, therefore, heavily lie on the authorities that seek to impose them to show that the restrictions are reasonable and permissible in law.” The broad principles enunciated in the above decisions provide the backdrop against which the excisions directed by the CBFC and affirmed by the FCAT require to be examined.

The first excision

In discussing each of the four excisions, it is important to keep in view the entire film, which has been summarized above. Further the sequences immediately preceding the portion sought to be excised are required to be adverted to.

In the first place, the law is clear that words or visuals in a film have to be viewed in the context of the whole film. They ought not to be viewed in isolation. It appears that in coming to the conclusion they did on the second excision, neither the CBFC nor the FCAT kept this principle in view. Gopal Vinayak Godse verse Union of India, a decision rendered by a Full Bench of the Bombay High Court concerned the validity of the ban on the Marathi novel “Gandhi-hatya Ani Mee” authored by the petitioner which purportedly contained passages and words that were allegedly distortions of history and promoted feelings of communal hatred. The Bombay High Court struck down the ban. Speaking for the Court Chandrachud, J. (as he then was) underscored the importance of considering the offending passages in the context of the entire book. He observed:

“We find ourselves wholly unable to take the view that the several passages on which the learned Advocate General relies are capable of promoting feelings of enmity and hatred between Hindus and Muslims in India. A passage here or a passage there, sentence here or a sentence there, a word similarly, may if strained and torn out of context supply inflammatory matter to a willing mind. But such a process is impermissible. We must read the book as a whole, we must not ignore the context of a passage and we must try and see what reasonably, would be the reaction of the common reader. If the offending passages are considered in this light, the book shall have to be cleared of the charge leveled against it.”

The ratio of the said decision would in the view of this Court equally apply to words and visuals in a film. Guideline 2(xiii) requires the CBFC to ensure that the film does not present “visuals or words which promote communal, obscurantist, anti-scientific and anti-national attitudes”. Guideline 2(xv) requires it to ensure that “the security of the State is not jeopardized or endangered” and Guideline 2(xvii) requires the CBFC to ensure that “public order is not endangered.” The burden of showing that the visuals and words presented in the cinematographic film “promote” communal or anti-national attitudes is definitely on the state. The visuals and words presented in the film cannot be viewed in isolation. They have to be viewed as part of the whole film. When so viewed they have to be shown to “promote” communal or anti-national attitudes. Likewise, the burden on the state to show that the film as a whole “jeopardizes the security of the State” or that it “endangers” public order is indeed a heavy one. Mere apprehension of danger to law and order is hardly sufficient. Neither the CBFC nor the FCAT have in their impugned orders cared to explain why they conclude that Guidelines 2 (xiii), 2 (xv) and 2 (xvii) have been violated.

The freedom of the citizen’s speech and expression under Article 19 (1) (a) of the Constitution may not be absolute, but the restrictions thereon under Article 19 (2) have to be narrowly construed. As explained in Life Insurance Corporation of India versus Prof. Manubhai D. Shah (supra) the burden is on the state to show that the benefit from restricting the freedom is far greater than the perceived harm resulting from the speech or depiction. The State has to ensure that the restrictions do not rule out legitimate speech and that the benefit to the protected interest outweighs the harm to the freedom of expression Jutico Harlan in Cohen v. California (supra) pertinently asked: “Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us?”

The broad principle that the film has to be viewed as a whole before adjudging whether a particular scene or visual offends any of the Guidelines has been reiterated in a large number of decisions of the Supreme Court, some of which have been referred to earlier. They have been followed by the High Courts in adjudging the validity of censorship directions concerning documentary films. Some of these decisions will be discussed hereafter. Documentary film maker Anand Patwardhan approached the Bombay High Court against the decision of the Prasar Bharti Board not to screen his documentary film Father, son and Holy War. The Bombay High Court allowed his writ petition against which the Doordarshan appealed to the Supreme Court. In Director General, Directorate General of Doordarshan versus Anand Patwardhan, the Supreme Court confirmed the decision of the Bombay High Court and observed that the film no doubt dealt with the communal violence but the attempt of the film maker was to portray the miseries of innocent victims of communal riots. It was observed: the message of the filmmaker who is owner of Copyright cannot be gathered by viewing only certain portions of the film in isolation but one has to view it as a whole. There are scenes of violence, social injustice but the film by no stretch of imagination can be said to subscribe to the same. They are meant to convey that such social evils are evil. There cannot be any apprehension that it is likely to affect public order or it in likely to incite commission of an offence.”

It was further observed : “The correct approach to be taken here to look at the documentary film as a whole and not in bits, as any message that is purported to be conveyed by way of a film cannot be conveyed just by watching certain bits of the film. In the present situation the documentary film is seeking to portray certain evils prevalent in our society and is not seeking to cater to the prurient interests in any person. Therefore, we have no hesitation in saying that this documentary film if judged in its entirety has a theme and message to convey and the view taken by the appellants that the film is not suitable for telecast is erroneous.”

For Copyright Registration in Cochin -> Click here