Film certification is an epitome of the old adage, "THE PROCESS IS THE PUNISHMENT"
All films, music videos etc meant for public exhibition in a cinema hall irrespective of its length or format (whether celluloid, digital or on DVD etc) are subject to certification by the Central Board of Film Certification (CBFC) which was formulated under the Cinematograph Act 1952. The Cinematograph (Certification) Rules, 1983, and The Guidelines issued in 1991 by the Central Government prescribe the regulatory structure in accordance to which CBFC discharges its functions. Through my Writ Petition(C) No. 187 of 2017, I have challenged the constitutional validity of certain provisions of all these 3 codifications which infringe the fundamental rights of artistes as well as the audience. No one had challenged the vires of these provisions for the last 47 years.
In light of the new technologies and developments, considering the paradigm shift in the mass media, it‟s the need of this hour that we redefine, reclaim and resurrect contours of our individual freedoms. Law must adapt itself to cope with new situations if it has to satisfy human needs and to meet the contemporary problems of life.
Background of the present challenge
In 1970, in the matter of K.A. ABBAS v/s UNION OF INDIA, a five-judge bench of the Supreme Court ruled that cinematographic films in theaters were the most influential media of mass communication affecting the social mind therefore, exercise of censorship under the said Act was valid and necessary. The social situation based on which the said decision was given is changed drastically to such an extent that the decision needs to be overruled by a larger bench of the Supreme Court. Today modern technology makes dissemination of information available in real time through a variety of media, many of which are either not regulated or if regulated, not subjected to pre-censorship.
From 1980, we had Doordarshan as the only public service broadcaster. Now we have more than 800 registered television channels along with 1000s of local cable channels. We have over 780 million TV viewers in India. By June 2017, the number of internet users shall reach about 450 million. With the onslaught of television and internet, we are increasingly "interfacing" to predominantly cultural data encoded in the digital form. Thus, it's no longer the 'cinema' but 'the digitized world' which is the 21st Century media machine binding the universe. The direct corollary of this is that if the content presented/exhibited/uploaded on either of these two avenues is free of censorship or pre-censorship, what is the rationale behind the same content getting cut/altered/deleted and thereby being censored when and if exhibited in a cinema hall? This amounts to discrimination barred by Article 14 of our Constitution. The attack on our right to equality is challenged in this context for the first time.
Documentaries which are factual depictions of real life events are closer to the news reports than fiction films. If Broadcast of news, investigative reports are presented on television and internet without any pre-censorship, subjection of documentaries to pre-censorship amounts to discriminatory treatment of similar entities which is violative of our fundamental rights ensured by Article 14, Art 19(1)(a), and Art 21 of our Constitution. None of the above laws define a ,documentary‟ nor there any specific ruling by the Supreme Court on this issue.
Since the decision in Abbas, the power of certification as a means of pre-censorship has been subjected to large scale abuse owing to ambiguity and lack of clear guidelines of how the power is to be exercised. As a result, the CBFC routinely demands cuts of scenes or dialogue failing which denies certificates to films for arbitrary reasons : Remove "Maan ki Baat" from a dialogue; get a NOC from the PM‟s office for the title of the film "Modi Kaa Gaon", the film is unsuitable to get released since "the story is lady oriented; their fantasy about sex, audio pornography", among others. Milder abusive words were demanded to be cut from many films whereas films like Parched, Saat Uchchkke, Udta Punjab were cleared with an ,A‟ certificate but without any cuts. On 31/07/2015, the CEO of CBFC informed the Board about the audit observations made by the CAG on working of CBFC. He said that ,the audit of 2014-15 had observed that CBFC converted 172 ,A‟ films into ,UA‟, and 166 ,UA‟ films into ,U‟ during 2012-15, without taking any law or provision into account. It had also observed that there were inconsistencies in the time taken by CBFC for issue of certificates to various producers."
The Aurangabad High Court has recently set another worse precedent which was not challenged by the producers of the film ,Jolly LLB‟. After the certification of the said film by the CBFC, the Hon‟ble bench demanded 4 cuts in a scene citing a possible ,defamation to the judiciary‟. Till now judiciary has played a role of a saviour of citizens‟ fundamental rights. With this decision, one more predator of artistic freedom has emerged which needs to be seriously scrutinized.
Brief details of the challenged provisions
The present Writ Petition is challenging the constitutional validity of Sections 2, 3(1), 4(1)(iii), 5(1)&(2), 5A(1), 5D(5) of the Cinematograph Act, 1952, and Guidelines # 1 & 2 dated December 6th, 1991 formed under Section 5B(2) of the said Act, along with Rules 3, 7(3), 22(2) &(8), 24(2), 32, 33(2) and 43(6) of the Cinematograph (Certification) Rules, 1983 on the grounds that those are violative of Articles 14, 19 and 21 of the Constitution of India.
Prayers sought through this litigation –
Since we are all bound by the constitutional restrictions on free speech as per Article 19(2), we are not challenging the entire Cinematograph Act but merely certain provisions thereof.
Among other reliefs, the WP seeks –
a. to quash Section 4(1)(iii) which empowers CBFC to carry out excisions amounting to pre-censorship which is an unreasonable restriction.
b. to declare the present CBFC incompetent to carry on functions under the said Act.
c. to declare that Section 5-B inapplicable to section 4(1)(iii) since the Guidelines under Section 5-B are for ,certification‟ and not for ,pre-censorship‟.
d. to quash the said Guidelines which are abstract, vague, imprecise leading to rampant erratic, subjective interpretations of scenes/language in a film amounting to unfair curtailment of the filmmakers‟ freedom of expression.
e. to increase the categories for certification under Section 4(1) or 5A(1) considering the age group and commensurate sensibilities of the audience in mind.
f. to remove ,documentary‟ from the ambit of definition Sections 2( c) and (dd), and to require documentaries to get the disclaimers regarding its content sanctioned from the CBFC.
g. to quash certain provisions which provide for appointments of the members of the Board and/or the Examining Committee, or the Revising Committee, or even the Film Certification Appellate Tribunal (FACT), without specifying any qualifications, leading to subjective, erratic, arbitrary interpretation of overbroad, imprecise Guidelines by the unqualified members which in itself is very unfair and unreasonable restriction on the filmmakers‟ freedom of speech.
h. That the recommendations of the Benegal Committee be given effect during the pendency of this WP.
Many core issues left untouched
I do not believe that the freedom of speech is absolute. This position raises the real problem as to where do you draw the line between accepted and unaccepted speech. Since the Indian Constitution has given us the framework of restrictions under Article 19(2), I am compelled to bow down to the nine limitations ,in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement of offence‟. These limitations are overbroad and vulnerable to subjective interpretations. Most alleged violations of freedom of speech are routinely based on either of these heads. In India, speech-based offences are cognizable that means a police officer has the authority to make an arrest without a warrant and to commence an investigation without the prior permission of the court. Thus the burden of approaching the courts is not on the Police/State but on the citizens. So the citizen-victim suffers double jeopardy – her/his right is curtailed plus she/he has to chase the judiciary!!! Should even the judiciary have a right to judge the artistic content of a work of art? In a scenario where the fence itself eats the crop, whom should the artistes and the audience approach? Similarly the provision for Government censorship (under Sec 13 & Sec 16(1)(a) of the Cinematograph Act, 1952) is equally objectionable. All such attenuating acts are disrespectful of autonomy and ought to be condemned.