LAW RESOURCE INDIA

CENSORSHIP AND THE STATE

Posted in CENSORSHIP LAW by NNLRJ INDIA on September 6, 2011

A.G. NOORANI IN THE FRONTLINE

The much-amended Cinematograph Act of 1952 needs a complete overhaul that takes film censorship out of the state’s purview.

THE entire system of film censorship in India is brazenly unconstitutional and a fraud on the Supreme Court. It is in utter disregard of the report of one of the most distinguished committees ever which toiled on film censorship 40 years ago. The structure erected by the outdated and much amended Cinematograph Act, 1952, is scandalous. It is designed to foster organised patronage. Politically, it establishes overwhelming state dominance to ensure the film industry’s dependence on Ministers and civil servants.

Like other Indians, members of the industry – actors, producers and distributors – wake up from their somnolence episodically, mostly when their own rights are affected. Those who protested over the cuts imposed on Prakash Jha‘s Aarakshan seemed to have no time for Ajay Sinha’s Khap, a movie on honour killings. It could not be screened in the one State that needed its message the most, Haryana. In her article, T.K. Rajalakshmi (“Reality show” , Frontline, August 26, 2011), remarked: “No one in the Mumbai film industry, save a few, bothered to back the beleaguered film director.” The police actively prevented the screening of the film.

On August 10, Amitabh Bachchan, who stars in Aarakshan, blogged: “If creative expression is to be curbed by institutes that wish to dictate their terms… above the conditions of… recognised constitutional formats… then we might as well accept that we live not in the sanctity of the tenets of democracy but a most unfortunate fascist conditioning.”

He must be congratulated on his belated discovery of a grim reality. A pity that it dawned on him only when his film was being brutalised. Our publicity-hungry civil liberty “activists” were conspicuous by their silence on the issue. The Athenian lawgiver Solon (640-558 B.C.), when asked how a people could preserve their liberties, said: “Those who are uninjured by an arbitrary act must be taught to feel as much indignation at it as those who are injured.” In India, such a consciousness is absent; protests are episodic. They subside and things go on as before. There is no national, non-political civil liberties organisation or movement.

Do not trust our politicians to fill the void. As a foreign correspondent once remarked, the Indian politician wakes up to deprivation of liberty only when the prison doors are shut behind him. Khaps provide musclemen during election. In Mumbai, two Ministers and a politician extracted from Prakash Jha his consent to cuts in order to gain some brownie points. One regrets the cuts; but one cannot condemn him. The system is frail, and crores of rupees are involved.

Cinematograph Act

It is time to reflect on the state of the law on film censorship. What are the travails that lie before the producer of a film as he seeks a certificate for its public exhibition, unrestricted or otherwise? The Act of 1952 establishes at the apex of the structure a Board of Film Certification comprising a chairman and not less than 12 and not more than 25 other members. It is to this board that any application for certification for public exhibition must be addressed. The chairman and members are appointed by the Central government. They do not enjoy security of tenure; no one in the entire edifice does. No qualifications are prescribed either.

New Delhi also appoints “at such regional centres as it thinks fit advisory panels” comprising such number of persons as it thinks fit. In this instance, “qualifications” are prescribed in a statement of the obvious. They must be “qualified in the opinion of the Central government to judge the effect of films on the public” (emphasis added, throughout). By this test, even literacy is not essential. Regional centres will have a powerful official, the regional officer, besides the chief executive officer of the board.

It is no reflection on the highly respected Chairperson now in office, Leela Samson, or on her immediate predecessor, Sharmila Tagore, to say that some of their predecessors, in the past, were appointed to give “jobs for the boys”. It is a notorious fact that the members of advisory panels are changed with every change of government in New Delhi. All are culpable in this – from Indira Gandhi and the Janata Party to the present.

Advisory panels are constituted under Section 5 of the Act. Its clause (3) says: “The Board may consult in such manner as may be prescribed any advisory panel in respect of any film for which an application for a certificate has been made.” The expression “as may be prescribed” is legalese for prescribed by rules made by the government. It is not the Act of 1952 passed by Parliament but the Cinematograph (Censorship) Rules, 1958, made by the government which set up two more powerful bodies – an examining committee (Rule 22) and a revising committee (Rule 24). Members of both are drawn from among members of the advisory panel. The examining committee plus “an examining officer” (a CEO or regional officer, or even the secretary to the chairman). It is the regional officer who appoints this committee when he receives the producer’s application for certification.

On receipt of the opinions of its members, in writing, the chairman of the board can refer the matter to a revising committee, either of his own motion or on the request of the applicant. The revising committee consists of members of the board or of an advisory panel, other than those who served on the examining committee. They are appointed by the chairman. He can pack the revising committee with those who will not disagree with his disagreement with the examining committee. If the chairman disagrees with the decision of the revising committee as well, the board shall itself examine the film or refer it to another revising committee; in either case for a final decision.

Anyone aggrieved by an order of the board, arrived after these protracted proceedings, can move an Appellate Tribunal (Section 5 C and D). It comprises a chairman and not more than four other members, all appointed by the Central government. The chairman must be either a retired judge of the High Court or a person qualified to be a High Court judge – a party hack of 10 years’ practice as a lawyer qualifies as chairman. As for its members, all that is required of them is that, like members of advisory panels, they “must be qualified to judge the effect of films on the public”. Two things stand out in this system: (1) No qualifications are prescribed for anyone, from the chairman downwards; (2) Everyone, the chairman, members of the advisory panel, and even the judge who presides over what is supposed to be a judicial “Tribunal”, is a daily-wage earner. He or she holds office, in every single case, “during the pleasure of the Central government”.

There is a sleight of hand here. The Act empowers the government to make rules specifying the “terms and conditions of service”. It has abused this power to define the tenure of service and amass to itself the power to sack one and all. It is through this maze of arbitrary power that the hapless producer has to steer his film. His travails do not end even after he wins his case before the supposedly judicial tribunal.

Unregulated powers

The government wields vast “revisional powers” exercisable “at any stage” of the process, not only over the board but also over the tribunal (Section 6). Have you ever heard of the executive sitting in appeal over a judicial body? If the board receives a complaint in respect of a certified film, all that it can do is to refer it to its masters, the Central government. The board, it must be emphasised, is in law a quasi-judicial body. However, the scope of the state’s revisional powers is unregulated and undefined. No grounds are specified; no guidelines are indicated. The entire paraphernalia of the board, the advisory panel and the two committees can be reduced to naught by a mere fiat from New Delhi. The state’s clear objective underlying the Act of 1952 is to have a stranglehold over the film industry. No wonder Information and Broadcasting Ministers and Secretaries are sought after so ardently.

The Government of India can ask the chairman to “re-examine” a film – even one upheld by the tribunal – and to do so “in such manner and with such assistance as may be specified in the direction”. It could be the “assistance” of anybody. On receipt of the chairman’s opinion, thus arrived at, the government proceeds to “pass such orders” as it pleases (Section 6 and Rule 32). It can direct a certified film to be uncertified (Section 6 (2) and Rule 31) or suspend its exhibition “for such period as may be specified”. The entire edifice of film censorship collapses like a house of cards. It cannot be emphasised too strongly that State governments have absolutely no right or power to ban a film. Section 13 (1) of the Act clearly says, “The District Magistrate in respect of the district within his jurisdiction, may, if he is of opinion that any film which is being publicly exhibited is likely to cause a breach of the peace, by order, suspend the exhibition of the film and during such suspension the film shall be deemed to be an uncertified film in the State, part or district, as the case may be.”

Statutory discretion can be exercised only by the authority designated by the law to exercise it. The District Magistrate’s power is limited to his district and hinges on the likelihood of “breach of the peace”. State governments cannot lawfully order District Magistrates to ban films throughout the State. The District Magistrate’s order, moreover, is subject to confirmation by the Central government (Section 13 (2)).

Illiteracy is written into the law. Rule 41 (4) reads thus:

“(a) In cases where the examining committee, after examination of the film, considered that a scrutiny of the shooting script is necessary or the authenticity of the incidents depicted in a film of historical, mythological, biographical or legendary nature is to be verified, a provisional report to that effect shall be submitted by the regional officer to the chairman within a maximum of three working days after such examination.

“(b) A written communication shall be sent to the applicant within a maximum of three working days following the receipt of the chairman’s orders on the provisional report referred to in clause (a) and the applicant shall submit the script or the authentic sources on which the subject of his film is based within ten days from the date of receipt of such communication.

“(c) In cases where the members of the examining committee after the examination of the film submit to the chairman a provisional report indicating that expert opinion on subjects depicted in the film such as subjects relating to defence or foreign relations or any particular religion or law or medicine or any other subject, should be sought before the final report is submitted, the chairman may after taking into consideration the circumstances of the case specify a time limit for obtaining the expert opinion and for the submission of the final report of the examining committee thereafter.

“(d) In other cases, the script submitted by the applicant or the authentic sources furnished by him shall be scrutinised by the examining officer and the final report of the examining committee shall be forwarded by the examining officer to the chairman within ten days from the date of receipt of the script or the authentic sources, as the cast may be.” A script written by a litterateur is subject to such a scrutiny.

There is a fundamental objection to this bizarre provision. Evidently, its authors were ignorant of the very concept of an historical novel. Fiction based on history need not be historically correct. And who is to judge the accuracy of the historical narrative, the government’s hand-picked appointees? Expert opinion is as irrelevant as citation of sources. It is the richness of the imagination that matters, as does the style in the writing and in the depiction in the film.

The Centre can go so far as to impose “President’s Rule” on the board, making its chairman the Governor. Section 7B reads thus: “The Central government may, by general or special order, direct that any power, authority or jurisdiction exercisable by the board under this Act shall in relation to the certification of films under this part and subject to such conditions, if any, as may be specified in the order, be exercisable also by the chairman or any other member of the board, and anything done or action taken by the chairman or other member specified in the order shall be deemed to be a thing done or action taken by the board.”

But then, the Supreme Court itself has laboured under a completely wrong notion of what a historical novel is about. In 1990, Bhagwan S. Gidwani’s historical novel The Sword of Tipu Sultan inspired a producer to make a TV serial. Huge protests followed. Doordarshan’s decision explicitly to disavow any claim to historical accuracy or authenticity was one thing. What was saddening was the lapse on the part of the Supreme Court. Doordarshan’s formulation was made worse by the court sanctioning the words: (it) “has nothing to do with either the life or rule of Tipu Sultan”. This is manifestly incorrect and makes a mockery of the very concept of historical fiction; it is fiction inspired by history.

Disposing of a special leave petition seeking a ban on the airing of the serial, the Supreme Court directed in February 1991 that the following announcement be made along with the telecast of each episode: “No claim is made for the accuracy or authenticity of any episode being depicted in the serial. This serial is a fiction and has nothing to do either with the life or rule of Tipu Sultan. The serial is a dramatised presentation of Bhagwan Gidwani’s novel.” This is utterly wrong on the part of any court of law. The Supreme Court has since acted like a mediator asking writers to make cuts in works of solid historical research instead of taking a firm stand on their fundamental right to freedom of speech and expression.

The G.D. Khosla report

The stranglehold of the government and sheer arbitrariness, writ large over the Cinematograph Act, 1952, were strongly criticised in the report of the Enquiry Committee on Film Censorship headed by G.D. Khosla, a former Chief Justice of the High Court of Punjab. It was appointed on March 28, 1968, and submitted its report on July 26, 1969. It won praise from the Supreme Court. Its analyses expose very many provisions of the Cinematograph Act, 1952, the Cinematograph (Censorship) Rules, 1983 ( in supersession of the Rules of 1958), and the archaic censorship guidelines, framed by the Government of India 20 years ago on December 6, 1991, to be unconstitutional.

Fundamentally, the Khosla report envisaged an “ independent and autonomous Board of Film Censors”. The present board is neither. It urged repeatedly (pages 56, 59, 99 and 100) that the censorship code be drawn up by the board itself and not by the government. The present code is a diktat by the government, which also acts as the supreme authority for its enforcement. Few committees had a more distinguished membership. Among its members were R.K. Narayan, K.A. Abbas, Romesh Thapar, Umashankar Joshi, Tara Sapre, and the chairman of the board of censors. Nargis was unable to participate in the proceedings and her substitute, Balraj Sahni, too, did not participate “owing to his heavy professional commitments”. Among the witnesses who appeared before the body were Satyajit Ray, E. Alkazi, Pahari Sanyal, Sohrab Modi, V. Shantaram, Prithviraj Kapoor, Hrishikesh Mukherjee, and some leading distributors and film critics.

The report became a bestseller. Attention was focussed on one highly popular recommendation to the neglect of much else: “No court of law will hold that a kiss by itself, irrespective of the circumstances in which it takes place or the individuals between whom it is exchanged, is indecent or immoral. In the same way, nudity of the human form may or may not be indecent. If there is, for instance, a brief shot of a woman undressing and entering a bathing pool, as in the film The Visit, no suspicion of indecency or immorality attaches to the shot which is relevant to the story. On the other hand, there are many scenes of cabaret performances or striptease sequences in Indian as well as foreign film which are obviously introduced in order to titillate the senses and thus make the film commercially saleable. Many of these scenes would be declared obscene even by the most liberal-minded judges.”

The report stressed the point that the fundamental right to freedom of speech and expression (Article 19 (1) (a) of the Constitution) is subject to three conditions – (1) “reasonable” restrictions, (2) imposed by law, and (3) only on grounds specified in Article 19 (2).

It is not unmindful of the need to balance freedom of expression with the interests of society, which naturally depend on the social outlook at any given period. That outlook has become illiberal in many respects: “We have of late become so inured to these restrictions that we cannot even imagine a society in which complete freedom of expression with regard to matters concerning sex was accepted as correct and essential…. We like to salve our needlessly guilty conscience by ascribing a religious significance to these sculptures (at Konark and Khajuraho) but few people are deceived by this mock spiritual argument. The plain fact of the matter is that in those days it was not considered offensive or objectionable to talk, write, paint or chisel images representing sex, sexual relations and even sexual perversities.”

Equally relevant are the report’s censures on the mechanism of film censorship that still prevails save for the introduction of a tribunal. Its verdict, however, can be set at naught by the Ministry of Information and Broadcasting: “No detailed qualifications have been prescribed, under the Rules, for the appointment either of the members of the board or for the personnel of the panels, but it is expected that these persons are possessed of sufficient educational and cultural competence to deal with the matter entrusted to their charge. The chairman holds a statutory appointment. He is appointed without any consultation with the Union Public Service Commission. No specific qualifications for the post have been prescribed.”

Most important defect

Note these censures: “The present board of censors is not an independent body. Its decisions are liable to be set aside by an order of government.… Here we may reiterate the most important defect, namely, the lack of responsibility which the present system entails. For work of such importance it is necessary that persons who are entrusted with it should feel a full sense of responsibility. The rigidity of a code drawn up by a superior power, the inhibition and lack of flexibility resulting from such rigidity, the constant fear of interference and a residual consolation that mistakes will be rectified by a higher authority are features which not only destroy the efficiency of the board but arouse almost universal condemnation of its decisions. It is important, therefore, that state censorship should be exercised not by a department of the state, whose decisions are subject to revision, appeal or interference by the government, but by an independent body which has been given sufficient authority and a sufficient sense of responsibility to deal with the matter finally and irrevocably.”

The word “irrevocably” clearly implies finality to the board’s verdict subject, of course, to the court’s powers. The Information and Broadcasting Ministry then ceases to exercise “revisional” or other overriding powers as it does now. No room for doubt whatever is left when the report discussed the second alternative: “Perhaps the most important advantage of an independent board is that it makes for consistency and uniformity of the censorship policy, because it is immune from changing political influencers and the caprices of the Secretary or Minister in charge of the relevant portfolio.” The report recommended the details of such a set-up.

The Khosla report had no use for the advisory panels of assorted groups of people who comprise the examining and revising committees of today: “We are firmly of the view that the present system of entrusting the preview of films to a panel of honorary examiners, consisting of persons who have little sense of responsibility and who have been appointed in the exercise of governmental patronage, should be completely done away with. It is the censors themselves who must see all films, evaluate them and assume full responsibility for certifying or rejecting them. After giving the matter our most anxious thought, we feel that a Central board of 20 members drawn from various regions and familiar with regional languages will be able to discharge this work competently and expeditiously.”

This also does away with the chairman of the board, an office in the bounty of the Information and Broadcasting Ministry. The report suggested that the chairman of the board should have the status and ranking of a High Court judge and all the members of the board should be full-time, paid members. This single, quasi-judicial body will be fully responsible for drawing up the censorship code and applying it.

The government-ordained guidelines, as at present, must be scrapped: “These guidelines must be drawn up by the censors themselves so that a measure of flexibility is assured and the censors have ample discretion in dealing with each picture as it comes up for certification. It is important not to have a code drawn up by the government under its rule-making authority, for such a code assumes the rigidity of a legal enactment, and does not permit the exercise of discretion, it does not take into account the change in ideology, moral standards and norms of conduct, such as greater freedom in social intercourse between members of both sexes, the gradual erosion of the joint family citadel, the introduction of divorce laws, the changing attitude towards untouchability, the rights of land and factory workers, the status of women, etc. Finally, a rigid code of the type in force now does not encourage the evaluation of a film as one integrated piece which must be assessed and judged as a whole and not as a collection of distinct and separable parts.” The guidelines now in force were framed by the government and richly deserve these censures.

Abbas’ petition

In 1969, K.A. Abbas, one of the members of the Khosla Committee, moved the Supreme Court in view of the cuts imposed on his film A Tale of Four Cities. He challenged censorship of films itself or, in the alternative, the Act and the Rule, as being violative of the fundamental right to freedom of speech and expression. One of the grounds was that there was no appeal to a court or to an independent tribunal. The government conceded that and promised that it “would set on foot legislation” for that and other reforms besides. Without it the Act was void. It was saved from being declared void only by the government’s assurance.

The court delivered its judgment on September 24, 1970. A tribunal was set up only in 1983. On the censorship code, the court tartly remarked: “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 court noted a vital omission in the guidelines and said it should be repaired by positive “directions to emphasise the importance of art to a value judgment by the censors”.

The government’s promise to the Supreme Court to usher in legislation was sought to be fulfilled in 1973. The amending Act was to come in force on July 1, 1975. The Emergency, proclaimed on June 25, 1975, prompted the cancellation of the notification. The Janata Party government did not bring the Act into force either. All it did was revise the guidelines on January 7, 1978. Its I&B Minister, L.K. Advani, said in Madras (now Chennai) on May 6, 1978, that it was considering the establishment of a tribunal. He criticised the practice of the government setting aside the censor board’s decisions. In 1981, the amendments of 1973 were repealed and a new set of amendments was made to the Cinematograph Act, 1952. Some more followed in 1984. It is this regime, with the Rules of 1983 and the guidelines of 1991, that is in force today.

Clearly, the law is a fraud on the Supreme Court. The promise to set up an independent tribunal has been violated. Section 96 of the Criminal Procedure Code provides for a Bench of three High Court judges to consider the validity of an order banning a book. The least that can be done in film censorship is to establish a truly independent tribunal. Since the Khosla report, a pattern of obligatory consultation on appointments to high offices has been established by laws in respect of the chairmen of the Press Council of India, the National Human Rights Commission, and the Prasar Bharati Board. No such consultation is enjoined in the Cinematograph Act.

The Cinematograph Act, 1952, needs a drastic overhaul now, over half a century since its enactment. It is clumsy and ill-structured. The Rules set up bodies which should be set up by the parent Act itself. The Khosla report, approved by the Supreme Court, and the court’s ruling must be implemented. The board as it is now constituted, the bogus advisory panel and its examining and revising committees and tribunal must be scrapped. An independent board of qualified persons must itself censor films in accordance with guidelines framed by the board itself after full consultations with writers, the film industry and the public. Appeals should lie to the High Court. The state should be shorn of its revisional powers. The procedure in force today is cumbrous, dilatory and unconstitutional.

It is open to the film industry to set up a small group from among its members to draft a model statute for public debate. The present state of film censorship is obscene.

http://www.frontline.in/stories/20110923281909100.htm

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