Filmmakers file Petition on Censorship, Pre-Censorship and Certification of Films

Earlier this year, acclaimed film makers –Mr. Amol Palekar and Dr. Chandraprakash Dwivedi ("petitioners") had filed a Writ Petition in the Supreme Court seeking to challenge the constitutional validity of certain provisions[1] of the Cinematograph Act, 1952 ("Act") and the Cinematograph (Certification) Rules, 1983 ("Rules"). They have filed this petition as they have faced multiple direct challenges with the Central Board of Film Certification ("CBFC") such as cuts, deletions, alterations, denial of certifications in the past and to challenge the same they have had to often approach the Courts for reliefs. Several of their films such as Kissa Kursi Ka (1977), Hawayein (2003), and documentaries such as No Fire Zone: The Killing Fields of Sri Lankahave been denied for release in public space altogether. Hence, they have specifically challenged the CBFC's power of ordering cuts, deletions, alterations in any film along with the abuse of power while certifying and/or denying certification to any applicant film. Petitioners assert that these provisions impose pre-censorship on the freedom of speech and expression of the artistes as well as the audience who is deprived of the opportunity of viewing hundreds of cinematograph films as were conceived and created by its respective makers and thus violates Articles 14, 19 and 21.

The grievance of the petitioners is not a stand-alone claim, this treatment by the CBFC is rather commonly practiced by giving flimsy justifications. Few films in such a category include Aandhi (1975), which was banned for political reasons during Emergency and was released in 1977 even though it depicts the inter-personal relationship between an estranged couple that meet after several years and at different stations in life.

Another film is The Girl with the Dragon Tattoo (2011), which is a fictional psychological-thriller (English) film, whose certification was withheld pending deletion of scenes involving rape and torture and the filmmakers refused to concede and eventually was not released in India. Similarly, in Udta Punjab (2016), a film exploring drugs use and abuse, certification was withheld with a demand for about 90 cuts as was stated was based on political motives. This film was later permitted to be released with the nominal modifications by the Bombay High Court. Likewise, most recently, Padmavati which is based on a poem Padmavat by Malik Muhammad Jayasi and narrates the story of a Rajput queen has also been delayed indefinite because of numerous controversies and is thus pending approval by the CBFC.

The various grounds for challenging the provisions, namely: Sections 2, 3(1), 4(1)(iii), 5(1) & (2), 5A(1) of the Cinematograph Act, 1952 ("Act") and Guidelines 1 and 2 dated December 6, 1991 ("Guidelines") formed under the Act and the Cinematograph (Certification) Rules, 1983 ("Rules"), in Mr. Amol Palekar and Dr. Chandraprakash Dwivedi's petition are:

• That there should be no censorship of films at all as the role of the CBFC is to certify the film for public exhibition and not to pre-censor them.
• That the judgment of the Supreme Court in A. Abbas v. Union of India, (1970) 2 SCC 780 will not be binding while testing the constitutional validity of the provisions they have challenged as the provisions of the Act have been substantially amended since the judgment. This includes Section 4(1)(ii), the Cinematograph (Censorship) Rules, 1958 and 1991 Guidelines to guide the process of certification.
• That a documentary contains details of events which is inherently incapable to being pre-censored and depict real life events. Yet, documentaries are regularly exposed to ruthless censorship in the form of 'excisions or modifications'[2]curtailing the rights of film makers and potential viewers. Hence, documentary makers' artistic freedom and a potential viewers' right to receive information on socio-economic-political and cultural reality as the prevailing truth and different perspectives is curtailed under Articles 19(1)(a) and 21 of the Constitution. The petitioners emphasise here that when the broadcast of news, editorial or investigative reports are presented on TV, radio channels and internet, they are not required to be submitted before any authority for certification and/ or scrutiny and the content reaches the audience without modifications, however this is not the case of a documentary film which is not even defined in the Act. Further, Section 2(c) and Section 2(dd), which defines 'cinematograph' and 'film' respectively, does not make any distinction between a documentary film and a non-documentary film and thus treats two dissimilar forms of artistic expression and mediums of communication in a similar fashion. Hence, these provisions violate the fundamental guarantee of equal protection of the laws under Article 14.
• That the recommendations of Benegal Committee dated April 26, 2016, where draft of Rules and Guidelines were proposed in addition to certain provisions of the Act as a consequence of the technological advancement in the last two decades, have not been acted upon by the Central Government.
• That Section 4(1)(iii) which empowers the CBFC to carry out modifications before certifying the film for public exhibition does not amount to reasonable restriction as it amounts to pre-censorship of motion pictures. Even if it is assumed that it does, the restriction is still unreasonable as it operates like a weapon to curtail the artistic freedom of film-maker. To prevent financial penury caused due to pre-censorship by frivolous cuts, which are usually for oblique and political motives, filmmakers avoid controversial themes and unwillingly assent to cuts which amounts to severe restriction on their freedom of speech and expression. Even, the guidance given under Section 5B of the Act is for 'certifying' and not for 'pre-censoring' films. Hence, there are no guidelines which guide the CBFC while exercising the power of 'censorship'. Thus, these provisions have a 'chilling effect'[3] on the exercise of the constitutional right to free speech and expression and right to equal protection of the film makers in addition arbitrary exercise of the power of certification results in the denial of right to freedom to practice any trade, profession or business. Further, there is no provision similar to Section 4(1)(iii) which is applicable either to Television or to videos available on the digital mediums such as YouTube, Netflix etc, which all form a part of the same class. Further, the law makers' original intention was not to grant such wide powers of bringing changes in the content of the original film as Section 4(1)(iii) was introduced only in 1981.
• Also, the petitioners are entitled as adults to watch any film which has received either certification i.e. U, U/A or A. The petitioners indicate that these categories for certification may be increased and changed so as to accommodate the content in the firm to different groups of population such as 'not for Under 12', 'not for under 15', 'under parental guidance', 'adult with caution' with mandates of 'specific disclaimers in the publicity material and before the initial credit titles of the film' etc. may be introduced.
• Further, Section 3(1) of the Act read with Rule 3 of the Rules, which pertains to the CBFC and terms of offices respectively, does not prescribe the qualifications of the Chairman or the Members of the CBFC. Even if it is assumed that CBFC's members are learned in the field of motion pictures, their knowledge yet does not assist them to conclude whether a motion picture satisfies the conditions namely: 'against the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence'[4]. This in turn leads to erratic interpretation of guidelines in the hands of unqualified members and hence constitute as an unreasonable restriction of the filmmaker's freedom of speech. In these circumstances, the very fact that no qualifications for the members are prescribed gives the Central Government an unbridled power to appoint any person as a member or Chairman of the CBFC which violates Articles 14, 19 and 21 of the Constitution.
• Further, Sections 5(1) and (2) of the Act do not provide for any definitive criteria or qualification for selection of members of advisory panels and regional officers respectively. Similarly, Section 5D (5) of the Act read with Rule 43(6) of the Rules do not lay down the qualification of the members of the Appellate Tribunal. Hence, these provisions are violative of Articles 14, 19(1)(a), and 21.
• Rule 1 and 2 of the Guidelines are abstract and vague as motion pictures, television programmes and internet videos all form a part of the same class. Despite this, the differential treatment accorded to the same content expressed on/through these various mediums violates Article 14 of the Constitution. The petition asserts that the CBFC cannot be the protector of moral compass of the society when the values and standards of society are constantly changing with the changing times. Hence, the discretionary power given to CBFC is untrammelled, being without guidelines, suffers from vagueness which is apparent from the fact that despite a large number of films being denied certification, the said films are nonetheless released upon judicial review, solely on the ground that the same were exercised arbitrarily or illegally.
• Thus, if the pre-censorship provisions are removed and the Act is restored to its original position, just as it was enacted in 1952, no adverse impact on the society will be made since the films get released with due certification.

Therefore, the petitioners state that since the Act suffers from so many inadequacies and defects, hampering the fundamental rights of the Petitioners and other Indian citizens that the challenged provisions should be declared invalid.

Ajita Sharma is a Legal Researcher and Advocacy Officer at Chambers of Sr. Adv. Ms. Indira Jaising.

[1]Sections 2, 3(1), 4(1)(iii), 5(1) & (2), 5A(1) of the Cinematograph Act, 1952 ("Act") and Guidelines 1 and 2 dated December 6, 1991 ("Guidelines") formed under the Act and the Cinematograph (Certification) Rules, 1983 ("Rules").

[2] on the application of Section 4(1)(iii) of the Act.

[3] Shreya Singhal v. Union of India, (2015) 5 SCC 1 is relied upon.

[4] in Section 5B(1) of the Act.