Recently, the Bombay High Court came down heavily on the CBFC (Central Board of Film Certification) for denying a ‘U’ certificate for unrestricted screening to the makers of a children’s film titled “Chidiakhana.” Interestingly, the media went into overdrive reporting the story with strongly worded headlines and fortunately, just stopped short of turning the CBFC into a killer of freedoms and a virtual villain. As reported in the media, the Bombay High Court observed in a harsh tone, “You (CBFC) are a certification board and not a censor board. You will not decide what one wants to watch and see.”
In an ever-evolving media landscape, we need to analyse the role of the CBFC from a broader perspective. We sometimes forget that the CBFC is certifying films on a regular basis and only when it denies a certificate or seeks a cut in a film, the issue of censorship rakes up. Well, yes, it is not wise to equate film certification with film censorship but one cannot lose sight of the fact that the guiding statute (Cinematograph Act of 1952) on the subject and attendant governmental guidelines task the CBFC to do just that, i.e. CBFC is tasked to decide whether a film in its entirety is or is not against morality or decency or plainly, is it fit for public consumption or not?
It has to form an opinion before reaching a decision as to which category or type of certificate should be given. The task of forming an opinion invariably leads to the exercise of discretion and the opinion of the CBFC may not necessarily please the ears of filmmakers and members of the public.
In an early case, K.A.Abbas v. Union of India and another, the issue of pre-censorship of films was brought up and it was to be decided by the apex court whether it offends the fundamental freedom to speech and expression under the Constitution of India,1950 or not? The Court held it to be valid observing that, “Pre-censorship was necessary as the medium of film had to be treated differently from other forms of art and expression. The art of the cameraman, with trick photography, vistavision and three-dimensional representation thrown in, has made the cinema picture more true to life than even the theatre or, indeed, any other form of representative art.”
Cinematograph Act of 1952: Protecting Decency And Morality?
The observation of the Bombay High Court in the matter once again brings into the limelight the role of the CBFC and the subject of film censorship in India into sharp focus. While print and electronic media may be showing haste in branding CBFC as a relic of medieval age and regressive in character because it stifles artistic freedom and aesthetics in cinema, it remains to be understood by one and all that the law on the subject as contained in the legislative enactment, Cinematograph Act of 1952 empowers the CBFC in many ways to either grant a certificate to a filmmakers or refuse certification for public exhibition.
The statutory body has to keep in mind certain principles while certifying films. Section 5-B of Cinematograph Act, 1952 would help us in understanding the mandate of the certifying authority. The Cinematograph Act, 1952 guides the realm of film certification, often misunderstood as film censorship in India. Let us take a look at the provision.
5-B (1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is 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.
(2) Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.
If we just take a look at the wording of the principles prescribed, it becomes clear to us that the legislature has given wide discretion to the body which is supposed to be staffed with competent persons. The statute states that no certificate shall be given to a film if it is against decency or morality among other reasons outlined in Section 5-B of the law on certification. It is this particular provision which often leads to a legal contest between the filmmakers and the certifying authority. Usually, the makers of a film assert their artistic freedom and certifying authorities deny a certificate by raising objections to any scene, dialogue or musical piece in a film if it is in their opinion against “decency and morality” of society.
Now these words, ‘decency and morality’ are problematic in the sense that they provide ample room and space for multiple thoughts and viewpoints to take shape on a particular story point of a film. What is immoral for one may be liberating for another. What is amoral for one may be an expression of freedom for another. What is beautiful for one may be grotesque for another. What is ideal for one may just be the most imperfect world for another.
The Heavy Burden Of The CBFC
To take a call on the cinematic quality of a film is perhaps the oddest and the most dangerous job in the public sphere. The CBFC has to comply with the guidelines laid down by the government. A cursory look at these guidelines informs us about the heavy burden shouldered by CBFC. Some of the stated objectives of film certification provided on the website of CBFC stress on a film to be responsible and sensitive to the values and standards of society among other objectives.
The guidelines virtually list out specific scenes which may be proscribed. Sample this, “The Board of Film Certification shall ensure that scenes showing children being subjected to violence and abuse are not shown unnecessarily.” Now in a film on child abuse, a filmmaker may be led to include a couple of scenes on child abuse. It is highly likely that his film may run into rough weather with CBFC. It further advises CBFC that scenes showing vulgarity, glorifying intoxication and highlighting sexual violence are not permitted and if germane to the theme should be kept to a minimum.
It will be, however, beneficial to recall here that in the case of Bobby Art International v. Om Pal Singh Hoon, the exhibition certificate of film “Bandit Queen” was sought to be quashed through a writ petition in the apex court. The petitioner in the case argued that the film depicted women in a specific community portrayed as tormentors. The film apparently had frontal nudity scenes. The Supreme Court did not interfere with the exhibition certification awarded to film and observed that ‘A’ certificate has been appropriately issued. The Court reversing High Court judgment said,
“We find that the (High Court) judgement does not take due notice of the theme of the film and the fact that it condemns rape and degradation of violence upon women by showing their effect upon a village child, transforming her to a cruel dacoit obsessed with wreaking vengeance upon a society that has caused her so much psychological and physical hurt, and that the scenes of nudity and rape and use of expletives, so far as the Tribunal had permitted them, were in aid of the theme and intended not to arouse prurient or lascivious thoughts but revulsions against the perpetrators and pity for the victim.”
What about ‘decency and morality?’ Now, decency or morality are fluid concepts. In the case of Bal Thackeray v. Prabhakar Kashinath Kunte, the court had expounded on the meaning of the word ‘decency.’ Though the case was not about film certification, we may look at the way these terms were understood by the court. The court opined that the phrase “decency or morality” was not limited to “sexual morality” alone and observed, “The ordinary dictionary meaning of ‘decency’ indicates that the action must be in conformity with the current standards of behaviour or propriety, etc.”
In the case of S.Khushboo v. Kaniammal, [Criminal Appeal No. 913 of 2010 [Arising out of SLP (Crl.) No. 4010 of 2008 ] the court had observed, “Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.”
The case revolved around certain remarks of noted actress Khushboo on pre-marital sexual relations and it was argued that her remarks damaged the institution of marriage and may lead young women astray from the path of purity. The court said that, if her views are seen as an attack on the centrality of marriage then every freedom must contest their merit through the existing channels of free speech, such as the media. This was precisely how dialogue and discussion took place in a democracy, “wherein people can choose to either defend or question the existing social mores” in view of the court.
In another case, the Directorate General of Doordarshan & Others v. Anand Patwardhan and Another [Appeal (Civil) 613 of 2005], the Supreme Court of India, while responding to Doordarshan’s objection to a scene in the documentary, where a person is seen selling aphrodisiacs on the road and, while doing so, makes certain remarks about male sexuality, the Court held that a film must be judged “from an average, healthy and common sense point of view.”
Overall, it can be seen in these cases that film censorship revolves around subjective opinion making and the CBFC is just discharging a statutory duty by deciding on film certification. Judicial decisions on the problematic phrase of ‘decency and morality’ has been largely mixed, uneven and varied just like the public perception of these concepts in a dynamic societal set-up.
The ongoing conundrum on so-called film censorship should nudge the chosen representatives of people to reframe the law and guidelines on the subject. A body like CBFC should have more broad-based representation on board with persons drawn from various sections of the society. Perhaps, a rainbow panel is the need of the hour. It would boost the confidence of people in the functioning of the organisation.
The government can come out with standardised benchmarks of certification and the CBFC can undertake public awareness campaigns to highlight its role. Many films venturing into novel areas of filmmaking are struggling to obtain certification because of bold content ideas. As a result, the underground exhibition industry and black marketing of films get encouragement. The reform of CBFC is long overdue and steps should be taken to make the work of film certification more meaningful, relevant and catering to the needs of the society. If this doesn’t happen soon, then the artistic freedom surely may be sacrificed at the altar of restrictive and so-called censor laws.