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The Cinematograph Act, 1952: The Guardian of Victorian Morality and Decency

I do not agree with what you have to say, but I'll defend to the death your right to say it.~Voltaire

The Cinematograph Act, 1952 (hereinafter referred to as The Act) was enacted by the Parliament to ensure that films are exhibited in accordance with the limits of tolerance of Indian society i.e. within the walls of Article 19(1)(a) and 19(2) of the Indian Constitution.

To grant certification (or rejection, as the case may be) and regulate the public exhibition of films by means of cinematograph, section 3 the Act provides for the establishment of Central Board of Film Certification (CBFC, popularly known as the censor board) which is a regulatory body (guardian of Victorian morality and decency) consisting of a chairman and twelve to twenty-five members appointed by the Central Government to sanction and certify films under four different categories which are as follows:
  1. Universal (U)
    This certificate is granted to films which are suitable for unrestricted public exhibition. In other words, the film with ‘U' certificate can be watched by a family including children with no age bar.
  2. Parental Guidance (UA)
    This certificate is granted if, in the opinion of the Board, the film contains such material that an advisory to the parent or guardian becomes necessary so as to decide whether a child below the age of twelve should be allowed to watch the film or not.
  3. Adults only (A)
    This certificate signifies that the film is restricted to adults only i.e. people above the age of 18 as per the Indian Majority Act, 1857. These films are not considered appropriate for the mental health of the children as they can get negatively influenced or affected by the content.
  4. Restricted to special class of persons (S)
    This certificate is issued when, in the opinion of the Board, the theme, nature or content of the film is suitable only for a specific class of persons or profession.

The Board scrutinizes the film in its entirety and based on the contemporary standard of the Indian society following the procedure laid down u/s 4 of the Act. After a thorough examination, the Board can either make a speaking order of rejection following the due process and natural justice principle of audi alteram partem or grant the certificate which shall be valid for ten years. The certificate granted (or the rejection order, as the case may be) shall be published in the Gazette of India.

However, if any person who applied for the certificate is aggrieved by the order of the Board, may prefer an appeal to the Film Certificate Appellate Tribunal (‘FCAT'), a quasi-judicial body, within thirty days from the receipt of the said order under section 5C. Thus, the film has to clear three hurdles viz .the Examining Committee, the Revising Committee and FCAT. When the film is rejected by all these three bodies, the film is considered banned and moving to the Court remains the last resort for the film maker.

In case, the film is exhibited in contravention to the provisions of the Act, the Central government has the authority to suspend or revoke the certificate granted under section 5A by notification in the Official Gazette for such period as it may think fit. Since films are a form of art and sway public opinion and conscience, it is crucial to penalize the uncertified or unauthorized exhibition of film in contravention of the Act. Ergo, section 7 of the Act lays down the offences and penalties thereof.

Apart from this, the Act also authorizes the police to conduct search and seizure following the procedure laid down in The Code of Criminal Procedure, 1973 (‘CrPC') if the film is being exhibited in contravention of any of the provisions of the Act.

There have been quite a few cases in the history of Indian cinema in which the Board used its power to censor some parts of the film on account of public order, decency, morality and integrity & sovereignty of the nation. There is no straitjacket formula for determining the part to be censored since there is no standard definition of morality. It depends on the facts and circumstances of each case. Howbeit, it becomes crucial to respect the sentiments of the public at large to avoid any antagonism. Therefore, it becomes significant to ensure that films do not portray sexism, communal hatred, controversial political issues, extreme violence, vulgarity, an inappropriate portrayal of a well-known figure etc.

The Cinematograph (Amendment) Bill, 2019 was introduced in the Rajya Sabha to overcome the issues of piracy and copyright violation and prohibit the unauthorised recording of films. The Bill also at reprimanding the persons who indulge in unauthorized recording or transmitting or attempt to transmit or abet the transmission of a copy of a film or a part thereof with imprisonment for a term which may extend to three years and/or with a fine which may extend to ten lakh rupees.

Let's discuss some case laws to understand the intention of the legislature while drafting the Act:
  1. Bandit Queen (1994)

    Bobby Art International v. Om Pal Singh Hoon & Ors (1996) 4 SCC 1. (see here)

    The Bobby Art International, a film production company, in 1994, made a film called ”Bandit Queen” based on the true story of a well-known bandit- Phoolan Devi (‘Devi'). The film narrated the instances of gang rape, brutality and violence suffered by Devi.

    The film contained some explicit scenes of gang rape and frontal nudity and therefore, the Board agreed to grant Adult only (A) certificate to the film on the condition that all scenes depicting nudity, rape, any form of violence or indecency would be deleted or modified. The film was screened after the case reached the appellate tribunal which held that such scenes are permissible and granted ‘A' certificate to the film without any deletion or modification.

    Thereafter, a member of a specific community filed a petition in the Delhi High Court challenging the exhibition of the film on the ground that it depicted the protagonist in an abhorrent and questionable manner and degraded the status of womanhood in India. Besides, he contended that his rights under Article 14, 19 and 21 have been infringed.

    The Delhi High Court, in Bobby Art International v. Om Pal Singh Hoon & Ors., (1996) 4 SCC 1, ¶13. (see here), subsequently while holding that, ‘the scene of violent rape was disgusting and revolting and it denigrated and degraded women” and that the scenes of nudity were indecent”, ordered the Board to grant A certificate to the film only after the required modifications and deletions.

    The petitioner preferred an appeal against this judgment in the Hon'ble Supreme Court which set aside the judgment of the Delhi High Court and held that the scenes depicting frontal nudity, indecency or even immorality were an important artistic expression (in the present case) for narrating the true story of Devi and that the producer's right guaranteed under Article 19(1)(a) cannot be restricted only because it poses threat to the moral system of the society.
     
  2. Unfreedom (2015)

    This film is a contemporary thriller which features a homosexual love story with a terrorism angle directed by the filmmaker Raj Amit Kumar. The film after going through the assessment by Examining Committee, Revising Committee and FCAT was banned without any possibility of any ‘cuts' on the grounds of nudity and lovemaking between the same-sex partners which, according to the guardians of 19th-century morality, would incite unnatural and inappropriate passions, rapes and homosexual drives among the ‘vulnerable' members of the society.

    Additionally, the Board was irked by the Islamic terrorism angle which might create religious tensions between the Hindu and Muslim community. But, after all the controversies, the film got released on the online streaming platform- Netflix and was an instant hit amongst the audience. It is almost impossible to censor the content in this digital era. The filmmaker used the odds in his favour by using the remarks of the Board as the Unique Selling Proposition (‘USP') and ultimately challenged the hypocritic approach of the Board.
     
  3. Inshallah, Football (2010)

    This documentary film was based on the life of a kashmiri boy who aspired to become a football player and travel the world but his dreams were shattered since he was denied permission to travel outside the country because his father was charged with militancy. The film revolved around the difficulties faced by Kashmiris in the land of graveyards due to insurgencies, terrorism, arbitrary restrictions and militancy. The Board thought that the film was too sensitive for the audience and would create turmoil in society.

Conclusion:
The Cinematograph Act, 1952 has gone through several amendments over the years with no substantial change in its scheme. It is an Act of yesteryears with no relevance in today's society since with the advent of online streaming services like Amazon and Netflix; the so-called ‘vulnerable' audience can make an informed decision on its own and does not need a paternalistic CBFC to safeguard against indecency, immorality or violence. The legislators have failed to define these terms leaving it open for the moral policing Board to make arbitral cuts with its pair of scissors of 19th century.

The cinematic expression is not restricted to a single meaning, it is capable of thousand interpretations and therefore censoring the film based on the perception of a few board members, many of whom have nothing to do with films and cinema, jeopardises the right to free speech and expression (inclusive of thought). Censorship is but suppressing the voice of dissent because what good is the protection of free speech if the State cannot take care of it. The Apex Court very aptly stated the limits of free speech and expression in the following words in Shreya Singhal v. Union of India, (2015) 5 SCC 1, ¶13. (see here)
:
….This leads us to a discussion of what is the content of the expression freedom of speech and expression. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in....

There are other laws such as The Copyrights Act, 1957 which can be used for penalizing piracy and unauthorized dissemination of content. Of course, there is a need to prohibit hate speech and child pornography which can be down using a moderate level of censorship to uphold the universal values. It is high time, India moves from away from the concept of popular morality otherwise the freedoms provided by the Constitution of India under part III would remain a dead-letter.

REFERENCES:
  1. The Cinematograph Act, 1952 (see here)
  2. The Cinematograph (Amendment) Bill, 2019, 11 of 2019, Cl. 2. (see here)
  3. The Cinematograph (Amendment) Bill, 2019, 11 of 2019, Cl. 3. (see here)
  4. Bobby Art International v. Om Pal Singh Hoon & Ors (1996) 4 SCC 1. (see here)
  5. INDIAN CONST. (see here)
  6. A New Pair of Scissors: The Draft Cinematograph Bill 2010, Author(s): ANJALI MONTEIRO and K P JAYASANKAR, Source: Economic and Political Weekly, Vol. 45, No. 29 (JULY 17-23, 2010), pp. 19-21
  7. Politics of Film Censorship: Limits of Tolerance, Author(s): Someswar Bhowmik, Source: Economic and Political Weekly, Vol. 37, No. 35 (Aug. 31 - Sep. 6, 2002), pp. 3574-3577
  8. Police as Film Censors, Author(s): A. G. Noorani, Source: Economic and Political Weekly, Vol. 30, No. 5 (Feb. 4, 1995), p. 240
  9. The 'Radia'ctive Indian Media, Author(s): SATYA SAGAR, Source: Economic and Political Weekly, Vol. 45, No. 52 (DECEMBER 25-31, 2010), pp. 24-27
  10. Media Matters, Author(s): Beena Sarwar, Source: India International Centre Quarterly, Vol. 35, No. 3/4, the Great Divide (WINTER2008 SPRING 2009), pp. 184-193
  11. 15 Indian Movies That Got Banned By The Censor Board, Author: Gaurav Arora (see here)

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