Introduction
The right to freedom and speech and expression refers to speaking freely. It is a fundamental concept of democracy in today’s democratic nations, it is so to such a degree that it is frequently said that democracy cannot be sustained without freedom of speech and expression. To further strengthen the argument, it is often said that society can only develop if there is exchange of ideas. A man’s freedom is gauged by his freedom to reason on his own terms.
Internationally, Article 19 of the Universal Declaration of Human Rights states that everyone has the right to freedom of opinion and expression and this right includes the freedom to have opinions without outside interference and to exchange and impart information as well as ideas through the mode of any media, disregarding borders. The same right is reiterated within Article 10(1) of the European Convention on Human Rights. Following these international guidelines, many states incorporate the right to freedom of speech and expression within their constitutions.
In India, Article 19(1)(a) of the Constitution guarantees freedom of speech and expression to citizens. Foreigners within the borders of the country do not enjoy this right. Democracy dictates that every citizen be afforded the right to speak as well as the right to know. This creates an arrangement where the citizen is entitled to know about the affairs of his duly elected government as well as to observe peaceful protests if in disagreement of the affairs of the same. Peaceful protesting and dissenting is the seed of a progressive and level-headed society.
The Indian standards of obscenity have shifted gradually from the Hicklin test to the Millers test over a span of a long period. The research paper aims to carefully analyze the Indian legal framework relating to censorship in cinematography vis-à-vis public morality. The research paper does not aim to give a black and white definition of what is moral and what is not. It seeks to advocate the freedom of self-determination of such a definition by the society itself. Does the present functioning of the Central Board of Film Certification currently represent the the balance between freedom of speech and expression and public morality in a satisfactory manner? Are the present laws in relation to censorship reflective of a free society? These are the questions the research paper seeks to address.
Cinema and Freedom of Speech and Expression
Cinema, today holds great power and reach, it is arguably the most powerful medium of expression the world is aware of today. Cinema encourages expression like no other medium, and rightly so it is a recognized form of speech and expression. Cinema has a significant creative factor attributable to it, which creates interest in the human mind; hence, its educational potential is virtually unlimited. Is boredom not the only thing that keeps a child away from his lessons? It certainly is.
Furthermore, the proportion of cinema goers is very large, emphasizing cinema’s wide reach. Briefly put, the influence of cinema on day-to-day life of the people is nothing short of incredible. Cinema has both, appeal to interest of all age groups, all backgrounds as well as unprecedented reach among all forms of media. The influence it has in shaping the morality and thinking of the youth cannot be ignored. Therefore, there are laws of censorship in place.
There are jurisdictions which provide constitutional safeguards to movies themselves against what is known as pre-censorship. Also, there are jurisdictions which do not provide safeguards but consider cinema to be a part of freedom of speech and expression. India is one such jurisdiction.
Censorship of cinema is not new to the world. Indian citizens are guaranteed the right to freedom of speech and expression as a fundamental right. It also provides for imposition of reasonable restrictions by the state through law, unlike in the United States where the right is more or less absolute. The inclusion of said restrictions within the Constitution itself met with severe criticism in the constituent assembly. It was Dr. Ambedkar, chairman of the drafting committee, who wrote a letter to the chairman of the Constituent Assembly in support of the restrictions stating that instead of relying upon the Supreme Court to rescue the Parliament in cases where absolute rights become dangerous, the provisions have put the power in the Parliament’s own hands to restrict, albeit reasonably, the formidable force of fundamental rights.
Jurisprudence of Freedom of Speech and Expression
As historian Bury has observed, freedom of expression is “a supreme condition of mental and moral progress.” It has also been described as the touchstone of individual liberty along with the indispensable condition of nearly every form of freedom..
Freedom of speech and of the press lies at the foundation of all domestic organizations, without free political discussion, public education is not possible, which in turn is essential for the proper functioning of the processes of governance. In other words, freedom of speech is an essential component of a democratic set-up. It involves a free exchange of ideas, exchange of information and knowledge without restraints, airing and broadcasting of different points of view and forming one’s opinion and expressing them. Democracy demands by its citizens, an active and informed participation in the affairs of the community, democracy cannot work or flourish unless this partaking exists. Freedom of thought and expression and freedom of press are important in the sense that these are basic to a democratic government, which lays its beliefs that problems of the government can be solved by free exchange of thoughts and debate, this right is one of the pillars of individual liberty.
Democracy pivots on free debate and open discussion without fear of prosecution. If democracy means ‘government of the people by the people’, it becomes essential that citizens must have entitlement to participate in the democratic processes. However, free debate and open discussion is not possible unless there is a free and independent press. A free and independent press is what defines the health of and vigour of the democracy in question. A free press will not be afraid to question public policy and will display diversity in it’s views and opinions. Conversely, a press under authoritarian rule will sing praises and idolize the nation’s ruler. The newspapers are effectively an index of the true nature and character of a government, whether they are authoritarian or democratic.
The right to freedom of speech and expression does not restrict expression to one’s own views only. It includes the right to express, propagate or publish the views of other people. Thus, this right obviously includes freedom of press. Freedom of expression means the right to express one’s opinions freely by word of mouth, writing, printing, picture or in any other manner. Expression includes the idea of publication and distribution or circulation.
Freedom of expression is critical to sustain moral agency, which itself is the cornerstone of democratic culture and all citizens should have an equal opportunity to influence the environment in terms of morality of the cultural aspects of our society. The state must, hence, not do anything but endorse the right to freedom of expression for all subjects, protecting it from all harm. Dworkin views the nature of the right to freedom of expression as a constitutive element of democratic fairness, while Mills holds that protecting freedom of expression maximizes utility. These are instrumental justifications for freedom of speech and expression. Most of American jurisprudence regarding freedom of speech and expression have conformed to Mills’ views. It is necessary that individuals be in fact independent moral agents, and that government treat them as moral agents. These are both necessary conditions for democracy as the aim of democracy is not merely to facilitate majoritarianism, but rather to facilitate equality which can be achieved only if freedom of speech and expression manifests itself strongly. The object is not to agree with everyone’s opinion but it is to give everyone a fair chance of putting forward their views, this only serves to broaden the mindset of a society. A political community so called, genuinely, must strive to be a bundle of independent thinkers. It must not dictate the thinking of individuals about matters of politics, morality or ethics and should provide them the freedom to arrive at such beliefs on these matters through their own processes.
Restrictions on Freedom of Speech and Expression
It is established that Freedom of Speech and Expression is not absolute and is subject to reasonable restrictions. However, what is reasonable is the immediate question that comes to mind. Is censorship not incompatible with the democratic spirit of a democracy? Since, many a times censorship does not result in silence but also in doctored forms of truth. It is to understand the full nature of censorship that one has to trace the graph of censorship.
For restrictions to be reasonable, they must satisfy certain requirements. These requirements are; firstly, that the restrictions must be imposed by valid law or by valid executive action, secondly, the restriction has to pass the test of reasonability and thirdly, the restriction must be in proximate relation to purposes mentioned in the subclauses of Article 19.
The word reasonable is open ended and is open to judicial interpretation. The phrase reasonable restriction implies that restrictions cannot be arbitrary or excessive, or both. Legislation which lacks the care in imposing restrictions only to a reasonable level or by reasonable rationale is liable to be struck down.
Film censorship was present in India before independence. It came into being in 1918 and was operating till 1952, when it was repealed and replaced by the Cinematograph Act, 1952. The Central Board of Film Certification is established in accordance to the provisions of the Cinematograph Act, 1952. The Board is the issuing authority for certificates for public exhibition. The board functions in either of three ways after examination of a film or having it examined, firstly, it might sanction the film for unrestricted public exhibition; or, it may sanction the film but restricting it to viewing by adults only; or, it might not sanction the film for public viewing at all.
Section 5B (1) of the Act dictates the principles which guide the Board in certification of films. The provision in effect is a reiteration of Article 19(2). The Section has been upheld earlier by the Supreme Court.
Morality and Law
To see, as a matter of first importance, why law should be a base standard for public, we need to perceive as entirely distinguishable, the two regions of ethics or morals and public policy. Public morality and law might be closely related, yet they are not indistinguishable. In the view of criminal law, not all those matters which are outside the strictures or confines of the penal punishment are ethically reasonable; neither ought everything that is ethically wrong be made criminal. Public morality oversees the totality of human conduct, both individual and social. All parts of our liberty go under its domain, even our most personal contemplations, longings and inspiration. On the other hand, civil law concerns itself only with overt action or behaviour. It is regulatory and coercive in nature, and it is established that people can be coerced into moral action only to a limited extent. Therefore, law must limit its moral aspirations. This does not mean that the legislature, in framing laws must not look into the moral good of the society. It rather implies that such coercion should be limited only to that extent which is required for a healthy functioning society. A law which is high in moral ideals but is unpopular to the extent that a majority will find it unpopular or even boycott it, is in fact, bad in law. Likewise, a law which is unforceable or will cause undesirable effects in other spheres tends to defeat its own purpose. The more deep impacting a social evil is, the less effective coercive law becomes against it. The relation that law and morality have is popularly perceived that the presence law is to propagate morality in order to preserve moral life, enabling people to lead meaningful, peaceful lives. The average individual regards law as being a kind of systemized justice while the same individual looks at justice itself as a chaotic mass of moral principles. Thus, for the average individual positive law is considered to be a collection of rules, derived from the code of moral laws, which are somehow obligatory, and just or unjust according to its alignment with their inclinations and beliefs, needless to say this is contradictory. Positive law, to begin with does not rest upon morality. The average man confuses himself between law and morality with principles of abstract justice.
Freedom of Speech and Expression vis-à-vis Public Morality
Freedom of speech is not absolute in any country. In India, the restrictions on freedom of speech are codified under Article 19(2)-(6). For our purposes we shall look into Article 19(2)(v), public morality. The restrictions on the freedom of speech are exhaustive and hence any restriction on it shall be invalid unless it is related to any of the grounds mentioned in Article 19(2), or under 31A, 31B or 31C. Freedom of Speech and expression may not be validly restricted on a ground specified under clauses (3) to (6) of Article 19.
The question whether an utterance or publication is likely to undermine decency or morality is to be determined by analyzing its effect on the audience towards which it is targeted. The age and culture of the audience becomes relevant in these cases.
Morality is a vague term. It is highly subjective and hence difficult to quantify. The collective notion of morality also changes with different ages or time. Annie Besant was convicted for publishing literature advocating birth control. However in today’s India and England, the publication of such literature from a scientific or medical viewpoint is no longed an offence. Hence, The immorality of a representation must be judged by current standards.
The question now before us is what is the standard of test for movies with regards to censorship. According to Kant, “The fundamental postulate of liberty, is that, no man can be used as a means as man is an end to him as well as to the others.” A film exposes thoughts and ideas. The freedom of the expression of art is hence a necessary feature of the freedom of expression which involves a right to receive and impart information. The freedom of speech has to be put in balance with other social values. The freedom is not absolute and must yield frequently to common good. Films are an impressive medium which reaches out to the public like no other medium. It has become a subject of scrutiny with regards to obscenity.
As very beautifully put by Krishna Iyer, J., in Raj Kapoor v. State“Arts morals and law’s manacles on aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because state-made strait jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics. The world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the konarks and khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and state moralists prescribe paradigms and prescribe heterodoxies.”
The elements of obscenity and immorality are very subjective and what one might consider lecherous, another might find elevating. One standard we in India follow to benchmark acceptability of film is the certificate granted under the Cinematograph Act, 1952, upon obtainment of which, there is a justification for its display and such display will not attract section 292 of the Indian Penal Code, 1860.
Commenting on the film, A tale of four cities, the Supreme Court said, “it is not the elements of rape, leprosy, sexual immorality which should attract the censor’s scissors but how the theme is handled by the producer. It must, 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 colour and with sound and movement, would do. We may view a documentary on the erotic tableaux from our ancient temples with equanimity or read the Kama sutra but a documentary from them as practical sexual guide would be abhorrent.” In simpler terms, the Apex court explained that nudity and sex in a film cannot in itself be judged as undermining public morality and decency, rather, the context of the film as an entirety has to be taken into account.
Where art and obscenity are mixed, what must be seen is whether the artisitc, literary or social merit of the work in question outweighs its obscene content. The basic guidelines for testing obscenity are
- “Whether the average person applying the contemporary, community standards would find that work, taken as a whole, appeals to the prurient interest.”
- “Whether the work depicts or describes, in a patently obscene way sexual conduct specifically defined by the applicable State law, and”
- “Whether the work taken as a whole, lacks serious literary, artisitc, political or scientific value.”
These tests must be applied from an average healthy and common sense point of view. The correct approach is to look at the 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.
A film which wants to illustrate the consequences of a social evil necessarily must show the social evil. The guidelines must be interpreted in that light. In no case is encouraging the social evil permissible but a film which depicts a social evil as such cannot be made impermissible on the grounds of actually showing the social evil, such an act would be restrictive of freedom of expression through art and creativity. The social evil depicted must just be enough to make the point. What is obscene must be indecent as it is a matter of degree. There might be words, or representations which are indecent but not obscene. Such as advocacy of drug abuse, or a graphic representation of disease of genitals outside a clinic. Indecent is what does not arouse sexual passion but is offending nonetheless in another nature. The ambit of indecent is wider than obscene.
Specific cases of Censorship
The Bandit Queen case
In, Bobby Art International v. Om Pal Singh Hoon, the Supreme Court heard a matter relating to obscenity in a movie. The ‘Bandit Queen’ was a film made by the appellant, a film production company. The filmmakers had based the story on the truth, about a village girl who was raped and brutalized publically and subsequently joined a gang of violent criminals who used to raid, loot and kill as a means of extracting revenge from society who stood by watching while she was brutalized. The issue revolved around explicit depiction of nudity and rape in the movie. In lieu of the nature of the scene, the movie was granted an Adult certificate at first, but the respondent who was a member of the community portrayed in the film, filed for quashing of the certificate claiming that the portrayal of the main character was “abhorrent and unconscionable and a slur upon the womanhood of India”. He also claimed personal damange to his self-respect and reputation of his community by the way they were portrayed in the film. The certificate was quashed at the first instance on the grounds that the scene of nudity was ‘indecent’. The ruling was upheld on appeal as well. The applicants then approached the Supreme Court.
The issue before the Court now was whether quashing was necessary in this case. The Supreme Court set aside the quashment and upheld the certification of the film for public exhibition. The Court held that the nude depiction and depiction of rape were parts which made the story of the movie complete, it was necessary to show humiliation and brutality to justify the main character’s choosing a life of dacoity and violence, further, the Court emphasized the importance of the context in which the scenes occurred, the intention of the filmmaker, and the likely effect upon ‘normal’ adults who watched the film, further adding that the scenes were not intended to excite, nor would they be likely to have that effect upon viewers as they showed the brutality to which the protagonist was subjected and provided a psychological explanation for her later violence. The Court held that mere presence of nudity in the film did not make it obscene or indecent as the context was very different.
Explaining the plot and story of Bandit Queen the Supreme Court said:
“It is not a pretty story. There are no syrupy songs or pirouetting round trees. It is the serious and sad story of a worm turning a village-born female child becoming a dreaded dacoit. An innocent who turns into a vicious criminal because lust and brutality have affected her psyche so. The film levels and accusing finger at members of society who had tormented Phoolan Devi and driven her to become a dreaded dacoit filled with the desire to revenge. It is in this light that the individual scenes have to be viewed. First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of her breast and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly have been better conveyed than by explicitly showing the scene. The object of doing so was not to titillate the cinemagoer’s lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that the Tribunal referred to was not at Phoolan Devi’s nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shred of dignity. Nakedness does not always arouse the baser instinct.”
Schindler’s List
In Bobby Art International v. Om Pal Singh Hoon, a reference was made to the film “Schindler’s List”. In the movie, there was a scene in which jews in a concentration camp were shown frontally nude and being led into gas chambers for genocide. The court noted that the likely reaction from the public here was tears and shock and that there was nothing even remotely appealing to the perverted mind in the scene.
Unfreedom
“Unfreedom is an urgent contemporary thriller about a society torn apart by political, religious, and sexual turmoil. Shifting between New York and New Delhi, the film juxtaposes two powerful and unflinching stories about religious fundamentalism and intolerance, one of which follows a Muslim terrorist attempting to silence a liberal Muslim scholar, while the other is about a young woman who defies her devout father and escapes an arranged marriage because she is secretly embroiled in a taboo lesbian romance. In this searing portrait of the polarized world we live in, all four characters go to their absolute limit-and beyond-in their struggle to defend their deeply-held and conflicting viewpoints on freedom, faith, family and love.”
The film touched two sensitive topics at once. The first was a tussle between two individuals, one depicting religious extremism and the other depicting religious liberalism. The other was intolerance with regards to LGBT members of the society. The censor board deemed the film unfit for public viewing and proposed cuts, to which the director refused and appealed to the Information and Broadcasting Appellate Tribunal. The authorities completely banned the film in response stating that it incited unnatural desires.
The film was never released in India. The film’s objective is to educate rather than outrage but couldn’t pass the censor board. Recently, the film was released on Netflix.
Conclusion
Though the gradual shift in the test of obscenity from the Hicklin test laid down in R v. Hicklin to the Community Standards Test laid down in Miller v. California has been commendable, the arena of censorship is still shaky when it comes to clear-cut standards. The judiciary seems confused with applying either test. The Hicklin test was discarded in favour of the Miller test in Aveek Sarkar v. State of West Bengal. Neither of these test provide a good solution to the problem at hand.
The problem seems to be the way the Central Board of Film Certification functions. Instead of propagating the system of licensing, the board should, with the help of the industry, form panels of everyday film-goers, duly provided with information regarding the content of the movie after having waivers signed by them, watch and review the movie, upon which the board should take decision whether to allow the movie to be screened with or without age restrictions, or ban the movie altogether. A system like this would be a prime example of citizen participation in the process of democracy via free speech and expression.
The object is not to agree or disagree with cinema. That is a subjective choice. The object is to allow expression, and to develop sensitivities in the public which does not automatically go towards perversion, but towards acceptance and understanding.
Individuals as responsible adult citizens should themselves get to decide on their own whether a film is in fact immoral or not. It brings us to question the state of affairs in the country where censorship treats some aspects of the modern world as non-existent. The test of morality and obscenity in films is also outdated in India as it is based on, judgments that are at least half a century old.
References
Primary Sources
Constitution of India
Cinematograph Act, 1952
Books
- Ranbir Singh & A. Lakshminath, Constitutional Law, (Lexis Nexis Student Series, 2006).
- MP Singh, V.N. Shukla’s Constitution of India, (Eastern Book Company, 2011).
- Durga Das Basu, Shorter Constitution of India, (LexisNexisButterworths, 2001).
- M.P. Jain, Indian Constitutional Law, (LexisNexisButterworths, 2003).
- H.K. Saharay, The Constitution of India – An Analytical Approach, (Eastern Law House, 1997).
Articles
- Taylor, The Conception of Morality in Jurisprudence, 5.1 The Philosophical Review 36 (1896).
- Abigail Levin, Pornography, Hate Speech, and their challenge to Dworkin’s Egalitarian Liberalism, 23 Public Affairs Quarterly, 357 (2009).
Web Sources
https://www.hindustantimes.com
Written by
Mihir Kunal Ekka,
M.P Ranchi.
