Fundamental Right to Freedom of Speech and Expression and Censorship

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Two things from the bedrock of any open society- freedom of expression and rule of law. If you don’t have those things, you don’t have a free country. -Salman Rushdie

As wonderfully said by Sir Salam Rushdie, freedom of expression is the substratum of any free country. Freedom to speech and expression is regarded as the basic of liberty. This right is the essence in the society and must be safeguarded in every possible way. Freedom of speech and expression is a fundamental right assured to all citizens of India by Article 19(1)(a) of the Constitution of India[footnoteRef:1]. Even the Universal declaration of Human Rights, adopted in India in 1948, recognizes freedom of expression as a human right. Article 19 of the Universal Declaration of Human Rights states: [1: Ind. Const. art. XIX, § 1]

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” This right enables an individual to openly share his thoughts, ideas, views and beliefs. It is an indispensable right in a democratic country like India.

However, like with every right come a responsibility, this right also need to be employed with cautiousness. On the one hand Constitution has given the power to every citizen to speak and express themselves freely and on the other hand by incorporating Article 19(2), enacted reasonable restriction on implementation of this fundamental right. As per Article 19(2), this right can be constrained in the interests of the sovereignty and integrity of India. Every citizen is bound to protect its country and he should make sure that while exercising his right he is not compromising the security of the State. If any statement or expression has an adverse effect on friendly relations of the country with foreign States or public order then such a statement can be reserved. Criticism is a part of our fundament right to express our views but such reproach is not permissible when it defames someone or cause contempt of court. There is a very thin line between criticism and defamation; one should always be very watchful while giving critics. Decency, morality and incitement to an offence are yet some other grounds on the basis of which the right conferred under Article 19(1)(a) can be curtailed.

‘Freedom of speech and expression’ and ‘Censorship’ are counterpose. Censorship is the suppression of speech and expression of ideas on the basis of decency, morality, obscenity etc. The classic example of censorship in India is the Central Board of Film Certification (hereinafter referred as “Board”). Nowadays, it has been witnessed that censorship has been used as a medium to restrict the views of the authors, writers, producers and directors on some or the other nebulous basis just to protect the interest or wrongdoings of particular section of the society. As perceived, right to freedom of speech and expression is not an unbridled right and can be circumscribed in exceptional situations. This paper analysis whether the restrictions placed on the fundamental right to freedom of speech and expression by way of censorship is valid or not.

Cinematograph as a medium of expression

One can adopt any medium to express himself, words, text, gestures, audio, video, visual arts, images, etc. all are the means of expressing. Films are a means of creative expression. Cinematograph is a tool for showing motion- picture films. Films combine visuals, movement, sound, theatre, music all in one. Therefore, it is the most effective medium of communication because of its creativity which cannot be created by any other media. Since the times of its initiation, film has been one of the significant tools of expression of thoughts and ideas. In India, films are not just the mode of entertainment but it is a mode of mass communication which has extreme influence on the public. Being a mass production and distribution tool, it transforms private viewpoints into expansive public viewpoints and brings mass public into reality. The motion picture is able to stir up emotions more intensely than any other creation of art. Its effect particularly on children and teenagers is very enormous because of their infantile behavior which makes them suspend their disbelief more easily than mature men and women.

Statutory provisions for regulating exhibition by means of cinematographs

On the one hand every citizen of India has a fundamental right to freedom of speech and expression and on the other hand, we have Cinematograph Act, 1952 (hereinafter referred as “Act), Cinematograph (Certification) Rules, 1983 and the guidelines issued thereunder. The Act came into force on 28th July with a preamble to certify and regulate the exhibition of cinematograph films. Section 4 of the Act empowers the Board to examine every film intended to be publish in India. As per statutory provision, the Board will examine the film and as per its discretion decides whether the film is apposite for public exhibition or not. The Board may decide as follows:

It may approve the film for public exhibition without putting any constraint. In this case, “U” certificate or “UA” certificate is granted.
If the Board is of the opinion that the film is not suitable for children below the age of eighteen years, it may certify the film only for adult view with “A” certificate. The films are restricted under this category mainly on the ground of obscenity, nudity and indecency.
The Board may sanction the film for public exhibition with “S” certificate delimited to members of any profession or any class of specified persons.
Producer may be required to carry out modification as proposed by the Board otherwise the film will not be certified for exhibition.
The powers given under the statute are so extensive that the Board may even refuse to sanction the film for public exhibition.

Now, while certifying or refusing to certify the film for display, the Board has to follow certain guiding principles. These guidelines and principles are prescribed in Section 5B of the Act. Section 5B(1) of the Act is merely a general restatement of Article 19(2) of the Constitution of India. It says, a film shall not be certified for public exhibition if in the judgment of the Board, the film or any part of the film is against the interests of the sovereignty and integrity of India, it can adversely affect the security of the State. The film can be denied certification if fetters the friendly relations of the country with foreign countries. Public order, decency and morality are some other basis for denying certification. Further, any film that has defamatory content or involves contempt of court, or is likely to incite the commission of any offence, are also prone to be banned. Section 5B(2) of the Act added that Central Government may issue directions delineating more fully the principles of guidance in certifying films. Pursuant to Section 5B(2) of the Act, the Central Government has issued certain principles to be followed by the Board of Film Certification for sanctioning films for public exhibition. As per the guidelines, the board must ensure that the medium of film remains responsible and sensitive to the values and standards of society. Some other general principals includes no picture shall be certified for public exhibition which will lower the moral standards of those who see it, standards of life, having regard to the standards of the country and the people to which the story relates, shall not be so portrayed as to deprave the morality of the audience and the prevailing laws shall not be so ridicule as to create sympathy for violation of such laws.

In 1969, an Enquiry Committee on Film Censorship headed by Justice G.D. Khosla submitted its report suggesting reforms in censorship law in India. The Committee proposed constitution of an autonomous and independent Board for film censorship. In 2016, several parameters were recommended by Committee of Experts chaired by Shyam Benegal. One of the objectives in the report was to ensure that artistic expression and creative freedom are not duly curbed in the process of classification of films. The Committee treated the press and the films on the same level and suggested that:

“Cinema should have some freedom to deal with political, religious and other sensitive matters that are with regular press.” It is apparent from the above-mentioned guideline that right to express freely on these issues has been curtailed to a large extent, which is the main concern of the paper. Based on such equivocal guidelines, the Board restrains the film from exhibition. The significant question that arises for contemplation is whether such guidelines can be issued and administered in infringement of Article 19(1)(a) of the Constitution.

Constitution validity of Cinematograph Act, 1952

It is important to examine the constitutional validly of the Act in order to address the issues raised by this paper. Since the Act restricts the fundament right of the citizen it is palpable that the issue must have been raised and decided by the Indian Judiciary System. This issue was first raised in early 1970 by a producer of a documentary film called “A tale of four cities”. The producer challenged constitutional validity of the Act and the rules made thereunder before the Supreme Court of India[footnoteRef:2] on the ground that it is violative of Article 19(1)(a) of the Constitution of India. Upholding the constitutional validity of the Act, the Hon’ble Supreme Court was of the view that Censorship of films including prior restraint is justified under the Constitution and the treatment of motion, pictures must be different from that of other forms of art and expression. However, it has been stated in that although the word `reasonable’ is not to be found in Section 5B, but it cannot mean that the restrictions can be unreasonable. The system of censorship is a procedural safeguard that need to be in accordance with our fundamental law. [2: K. A. Abbas V. The Union Of India & Anr, AIR 1971 SC 481 (Supreme Court of India)]

Although, the Act was held constitutional, the vital aspect is the application of the law. Freedom of speech should not be eroded and attacked by distorting or turning the law.

Judicial interpretation of the Act

The Supreme Court and the High Courts through various judgments have contributed immensely to draw a balance between the right to freedom of speech and expression and the restriction imposed through censorship. In this section, some of the significant judgments related to the subject are critically examined.

S. Rangarajan, producer of the film called “Ore Oru Gramathile” approached Supreme Court for getting its film published without any restriction or modification. The film showed the story of a girl who arranges a fabricated cast certificate to get a reserved position and the consequences thereof. The Hon’ble Supreme Court[footnoteRef:3] in this case comprehensively dealt with the issue concerning the paper. As per the Court if the film cannot be restricted constitutionally under Article 19(2) of the Constitution of India, then the freedom of expression cannot be curbed on the reason of threat of demonstration or threat of violence. The Court made it very clear that the Constitution of India is supreme and the statutory law cannot surpass it. It was one of the paramount judgments of the judiciary to shield the fundamental right of the citizens of India. [3: S. Rangarajan and Ors. V. P. Jagjevan Ram and Ors., SCC 1989 SC (2) 574 (Supreme Court of India)]

Every citizen of India has a right to express his thoughts, producers are not any exception. Whether the view is right or wrong is not the concern of the Board. The question that needs consideration is whether such view can be expressed through films. The producer has a right to express his viewpoint on the present reservation system and the need to modify them. The most relevant extract of the judgment reads as follows:

“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 Articles 19(2) and the restriction must be justified on the anvil of necessity and not the quicks and 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.”

Fight of the producers to get their film published is a long road ahead. Oftentimes, the political forces use illegal channels for accomplishing their objective. Wielding police force for own cause is a conventional approach of those in power. Action of the police must be subject to the rule of law. They cannot misappropriate to themselves the authority to obstruct the right of speech and expression. Recently in 2019, the producer challenged the action of the Government and the police in instigating unlawful obstruction in the exhibition of his film before the Hon’ble Supreme Court[footnoteRef:4]. In this case although the Board certified the film as UA for exhibition yet the Government acted as the ‘super-censor’ and resorted to extra constitutions means to abrogate the right of the producer. [4: Indibily Creative Pvt. Ltd. and Ors. V. Govt. of West Bengal and Ors., AIR2019SC1918 (Supreme Court of India)]

Abuse of Law

It has been seen on various junctures that the powers granted to the Board under the Act has been extensively distorted and they have gone beyond their statutory powers while certifying a film. It is imperative to note that the power of the Board under the Act extends only to regulation of the film through certification. In many cases, the stance taken by the Board has been highly questionable and disputed. Encroachment of the fundamental right of the producer to express his thoughts and ideas is obnoxious in a democratic country like India.

The Indian cinema has on various instances been subjected to one or other forms of restrictions by the Board. These restrictions are in the form of alteration in the scenes of the movie or modification in the dialogues of the characters or movie getting banned when producers and directors are waiting for certification. The reasons for such restrictions have been more or less too flimsy. There has been a view that such restrictions are there to cater or appease the political masters. But for the sake of legality various justifications, largely under the guise of “Reasonable Restriction” as carved out in Constitution of India has been invoked. It is a paradox that a country which not just manifest but champion the cause of “Freedom of Speech and Expression” as an innate principle of a Democracy, has adapted completely different approach when it comes to its implementation.

The law needs to be objectively interpreted but the Board has taken a subjective approach leading to consequences that are unpalatable. Dissent to a view or expression of a different point of view has become an issue to the extent that bona fide speech sometimes becomes a security threat. Film named ‘Deshdrohi’ faced censorship for its controversial story. It was suspended from exhibition for 2 months on the grounds of breach of public order. Even after getting exhibitions orders from the High Court of Bombay, the film failed to hit the Maharashtra theaters because of political interferences[footnoteRef:5]. [5: Vasundhara Sanger, Deshdrohi is not anti-Marathi: Kamal Khan, The Times of India (Nov 14, 2008), https://timesofindia.indiatimes.com/city/mumbai/Deshdrohi-is-not-anti-Marathi-Kamal-Khan/articleshow/3714524.cms (Last visited on………)]

Yet another instance of abuse of censorship is movie ‘Unfreedom: Blemished Light’, a 2014 Indian drama by Raj Amit Kumar. The story revolves on homosexuality. Although, the film was released in North America but it was denied certification by the Board solely on the reason that it is demonstrating the reality which is not acceptable in the country like India. It got banned as the Board was of the opinion that Hindu and Muslims will start fighting and will ignite unnatural passion[footnoteRef:6]. Whether the film was rationally restricted by Article 19(2) or was just another instance of impingement of the right of producer to express his thoughts and views? [6: Ankur Pathak, Board bans film on gays, claims it’ll ignite ‘unnatural passion’, Mumbai Mirror (Mar 28, 2018), https://mumbaimirror.indiatimes.com/entertainment/bollywood/film-review-barkhaa/articleshow/46720288.cms (Last visited on….)]

The movie ‘Firaaq’ was not released by many theatres in Gujarat due to political pressures as it depicted the Gujarat riots, 2002.

Conclusion

The Act is in juxtaposition to Article 19(1)(a) of the Constitution of India. Although, the Act holds its constitutionality but the guiding principle for testing the films should run analogous to the Constitution. While invoking Section 4 of the Act, the Board must strike the balance between the fundamental right of the citizen and Section 5B of the Act. The powers can be exercised reasonably as per Article 19(2) of the Constitution of India. It should not be used to protect the personal interest of any office-bearer. Right to expression includes right to criticize or express one’s opinion on any subject and unless it defame or cause incitement to an offence, it cannot be withhold under the umbrella of restriction imposed under Article 19(2) of the Constitution of India. Cinema being an important tool of mass communication it cannot be restricted unreasonably as per whims and fancies of the Board. The screening process should be made more transparent without any interference of the powerholders.

All things considered together, right to free speech and expression can be restricted only where it is absolutely essential to prevent any actual harm. If democracy has to evolve, certifying the films for exhibition cannot be denied on mere conjecture.

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Fundamental Right to Freedom of Speech and Expression and Censorship

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