Never in Punjab

Udta Punjab is not the first film that the Central Board of Film Certification has sought
changes in. And as in several previous instances of censorship,

its demand has no

rational basis and violates the constitutional guarantee of freedom of expression. The plot
line of the film is anchored in Punjabs widespread drug addiction, a problem that has been
extensively researched and detailed. It is widely known that drugs are laying waste the people of the
State. Ironically, the CBFC wants Punjab expunged from the title along with edits so that the drama
could be read as taking place anywhere in the country, not specifically in Punjab. Depictions of live
issues and events are usually introduced with the caveat that resemblance to real persons is
accidental, and it would be logical to assume that this is where the Board should have left it. The
reasons for its censorious zeal are not difficult to guess. Assembly elections in Punjab are less than a
year away, and the ruling Shiromani Akali Dal, which leads a coalition with the Bharatiya Janata
Party, is being cornered most acutely on drug abuse. It is accused not only of failing to check the drug
trade, but also of turning its eyes away from the involvement of well-connected individuals. The
films producer has taken the matter to court, and one must await further legal developments to
know the fate of the film. But in his inordinate enthusiasm in talking down Udta Punjab, CBFC chief
Pahlaj Nihalani has only brought the issue of drug consumption in Punjab back into the spotlight.
It is just as well that the matter of certification has been taken to the courts. As film-makers scope
the landscape for realistic depictions of immediate issues, they face resistance in the form of CBFC
recommendations or outright threats of violence from assorted groups. From Bombay in the
Nineties to Vishwaroopam more recently, the right of producers to screen their films is often
negotiated politically. There have been many efforts to secure the freedom of expression for
example the G.D. Khosla report in 1969 recommended independent members on the Board, then
called the Central Board of Film Censors. Independence has remained elusive and even if full
autonomy of the Board is ensured, there is no guaranteeing that the institution would be any less
scissor-happy. Perhaps the Shyam Benegal Committee set up early this year by the Information and
Broadcasting Ministry has offered a more practical solution: the CBFC should only certify a film and
its scope should be restricted to categorising the suitability of the film according to the audience
group for which it is intended.

The Cinematograph Act, its Guidelines, and the censor board, by making
the government the arbiter of what films are fit or unfit for citizens to see,
are fundamentally at odds with our constitutional vision
Pahlaj Nihalani, the censor board chairperson, is in the news again this time for his ham-fisted,
tone-deaf treatment of Anurag Kashyaps Udta Punjab, a film about the drug problem in Punjab. Mr.
Nihalanis bizarre claim that the film defames Punjab, and his alleged insistence that all references
to the State be excised from the film, and a disclaimer added acknowledging the governments efforts
at controlling the drug menace, all sound more in tune with a fervid political campaign than with the
level-headed deliberations of a film certification board.
In the aftermath of the controversy, it has become tempting to cast the censor board chairperson in
the role of the comedy villain, the sinister yet dull-witted censor taking up his blunt cudgels against

art and expression. Such a description is not entirely inaccurate. However, framing the issue in terms
of the actions of one individual no matter how arbitrary or erratic risks confusing the symptom
for the disease, and blinding us to the real problem: today, a Nihalani is made possible because of the
existing legal framework, and nearly half-a-century of judicial discourse around it.
Regime of pre-censorship
The censor board (actually, the Central Board of Film Certification) is a statutory body under the
Cinematograph Act 1952. The Cinematograph Act creates a regime of pre-censorship or, in
technical terms, a regime of prior restraint. Before a film can be released for public viewing, it must
be cleared by the censor board. The board is tasked with ensuring that the content of the film does
not fall into any of the categories of reasonable restrictions upon free speech that are set out under
Article 19(2) of the Constitution. Article 19(2), however, consists of a set of abstract phrases such as
public order, decency or morality, defamation, and so on. To aid the censor board in its task,
the government is authorised to frame concrete guidelines. These guidelines have been changed from
time to time, and at present, stipulate (among other things) that dual meaning words as obviously
cater to baser instincts are not allowed, visuals or words which promote communal, obscurantist,
anti-scientific and anti-national attitudes are not presented, and human sensibilities are not
offended by vulgarity, obscenity or depravity.
One glance at these Guidelines should be enough to establish that they not only allow, but
positively invite, arbitrary censorial action. Instead of clarifying and cabining the scope of discretion
under Article 19(2), they expand it, creating a broad and vague field within which the Censor Board
can operate. And Mr. Nihalanis treatment of Udta Punjab, in fact, is not an isolated act of a rogue
official running wild, but simply one particularly egregious application of a repressive legal regime.
Legal opinion
However, it didnt have to be this way. Forty-six years ago, the film-maker K.A. Abbas challenged the
constitutionality of the pre-censorship regime established by the Cinematograph Act, as well as the
Guidelines framed under it. Abbass argument was that pre-censorship was too draconian to be a
reasonable restriction upon free speech under Article 19(2). This was especially so because other
media of communication, such as print, were not subjected to pre-censorship. In any event, he
argued, at the very least, the Guidelines were entirely vague and arbitrary.
However, it was Abbass misfortune that his case came to be heard before a bench led by a judge who
had not only shown himself to be hostile to the freedom of speech and expression, but also fancied
himself as an art and culture critic a lethal combination. Five years before, Chief Justice M.
Hidayatullah had upheld a ban on D.H. Lawrences Lady Chatterleys Lover by dismissing its artistic
qualities as worthless, and had adopted a 19th century legal test for obscenity focussed on preventing
moral depravity and corruption. After that, he had held that the politician E.M.S.
Namboodiripad, in suggesting that the judiciary was an instrument of class oppression according to
Marx, had failed to understand Marx, and had committed contempt of court. Now, in writing the
courts opinion on film censorship, he not only upheld the Act and the Guidelines, but also embarked
upon a psychological analysis of how the medium of cinema, with its versatility, realism (often
surrealism), and its coordination of the visual and aural senses was able to stir people much more
deeply than written words could, and, therefore, had to be subjected to a more stringent regulatory

regime. Strangely, Chief Justice Hidayatullahs reasoning in K.A. Abbas was strongly reminiscent of
the argument from colonial difference, used by the British to deny Indians civic freedoms and the
right to self-governance for the longest time. The British had regularly invoked the emotional, mental
and political immaturity of Indians to justify both their rule, and the necessity of imposing a
repressive censorship regime upon the press and the arts. Independence had come, and a new
Constitution, but the same Indians who were now considered politically mature enough to govern
themselves and choose their own leaders, could still not be trusted by the Supreme Court to watch
films without the prior approval of the government.
Moralising, patronising discourse
K.A. Abbas was an unfortunate judgment because it not only upheld the Cinematograph Act and its
vague guidelines but also created a judicial discourse around films and the freedom of speech that is
defined by its moralising, patronising, and paternalistic character. A little over a decade-and-a-half
later, in S. Rangarajan vs P. Jagjivan Ram, the Supreme Court observed that pre-censorship of
films was necessary because cinema audiences were not as discerning as newspaper readers.
Nearly a decade later again, in the Bandit Queen case, the Supreme Court permitted some scenes of
violence and frontal nudity on the ground that they served a larger social purpose of creating, in the
minds of the viewers, a revulsion towards such actions and that the scenes were no longer and no
more detailed than was strictly necessary to serve this purpose. And vestiges of this approach
continue today: it was reported that the Bombay High Court remarked, during the hearings on Udta
Punjab, that multiplex audiences are now mature enough.
It is not clear in what context and for what purpose the High Court made this observation. What
should be clear, however, is that it is high time that this discourse of maturity and immaturity
(whether of multiplex audiences or otherwise) was jettisoned from our constitutional discourse. Our
Constitution, the culmination of a decades long struggle for political independence and civic
freedom, is premised upon the belief and the faith that citizens are autonomous individuals,
who make their own choices and take responsibility for them whether it is in the political arena
while exercising their right to elect their representatives, or in the cultural arena, in deciding which
gods to worship, whom to associate with, and what to see, speak, or here. The Cinematograph Act, its
Guidelines, and the censor board, by making the government the arbiter of what films are fit or unfit
for citizens to see, on the assumption that the wrong kinds of films might lead them to form the
wrong kinds of views or take the wrong kinds of actions, are fundamentally at odds with our
constitutional vision.
The Courts sanctification of this legal regime has been an error. It is, however, an error that need not
be further compounded. It is time not only for Mr. Nihalani to go but also for the regime of film
censorship to be swept away along with him, unlamented and unremembered.

Film censorship continues

and spreads in India
The Shyam Benegal Committee report does not help
matters.
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Written by Pankaj Butalia | Updated: June 8, 2016 9:23 am

One can understand why the state wants to shoot the messenger but why should a filmmaker
provide it legitimacy?

Reports that the Central Board of Film Certification (CBFC) has asked for many cuts in
Abhishek Chaubeys Udta Punjab as well as sought the removal of Punjab from its title give a
complete lie to the governments pronouncements that it would like to usher in an era of reduced
control on films.

But they do fit in with the paranoia that exists in the minds of the CBFC members which allows
a film to lie but does not allow it to tell the truth. This was stated in writing by the counsel for the
CBFC in the Delhi High Court in a case against my documentary The Textures of Loss when he
said that a fiction film is a work of fantasy and must, therefore, be given much more leeway for
exhibition than a documentary, which actually tells things as they are that is, tells the truth.
Applying the same logic, the CBFC has denied certification to two documentaries Kamal
Swaroops Dance for Democracy and late Shubhradeep Chakravortys En Dino Muzaffarnagar
in the past. Ironically, none of these actions are actually sanctioned either by The
Cinematograph Act or by the various interpretations that courts have held on free speech and on
film certification. Yet, individuals appointed to the CBFC continue to act as if they were the sole
guardians of public morality, free speech and permissiveness in society.
The Indian government has made two half-hearted attempts to deal with the situation by
appointing commissions to review the process of censorship. The Mukul Mudgal Committee
Report (2013) was found inadequate and rightly consigned to the dustbin. The hype then shifted
to the recently-formed Shyam Benegal Committee (2016) on film censorship. Given the fact that
eminent film personalities were on the committee there was hope that at least, this time, the issue
would be addressed with the seriousness it deserved but the final report has belied all
expectations.
The broad themes of the report suggested that henceforth the focus will be on certification and
not censorship; that the numbers of members of the CBFC will be reduced from 25 to 9; and that
the categories of certification will be increased by two one for minors and one for adults.
In itself, the reduction in membership and the increase in categories will do nothing to curtail the
censorious attitude of the CBFC. The muddle-headedness of the committee can be seen in the
one significant recommendation it has made. In saying the CBFC will no longer have the power
to suggest/make cuts, the committee claims to have taken away the scissors. Unfortunately, what
it gives with one hand it takes away, and in greater measure, with the other because it gives the
CBFC the absolute right to refuse certification to a film which violates section 5B(1) of the act
which states: 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.
This section of the act is nothing but a listing of the reasonable restrictions to free speech in
Article 19(2) of the Constitution. Now 19(2) poses a hurdle to free speech and anyone attempting
to expand the scope of free speech must try and look for ways in which the powers that 19(2)
gives to the state (and to the CBFC) can be restricted.
The Supreme Court has read down Article 19(2) in no unclear terms in innumerable
judgments. The Benegal Committee could easily have made it mandatory for the CBFC to keep
such interpretations in mind when evaluating whether there is a violation of 5B(1) or not.
Instead, it has given blanket powers to the CBFC by stating films that violate section 5B(1) of
the Act shall not be considered for certification. This is being more loyal than the king.
All the CBFC has to now do is to refuse certification to any film in which even a minor scene
falls under section 5(B)1. After all, decency, morality, public order, the integrity of the country
are very broad categories and the CBFC can just wash its hands off a film in the guise of
respecting 5B(1). The Benegal Committee has converted censorship to self-censorship the
most effective form of state censorship.
But what happens if a filmmaker does not wish to make changes? The Benegal Committees
answer to this is no certification. The committees attitude is reflected in Benegals statement
to a newspaper (May 4), If the CBFC refuses to clear films and advises cuts on the basis of
section 5B(1), which filmmakers think are not appropriate, they can always challenge the
decision in the court. But surely the committee was set up to curtail the powers of the CBFC
and not burden the courts with additional responsibility.
To further bolster his case on censorship, in the same report, Benegal says You can criticise the
establishment. For example, individual cases within the Indian Army can be highlighted in a
film, but no country will accept showing its entire army in a bad light.

First of all, this is just not true. The world over, films have been critical of the state, of the army
or its actions. Witness the innumerable films that have been made in Hollywood criticising the
US army for its actions in Vietnam and Iraq. It is scary when a senior filmmaker uses statist
terms like inciting communal violence or showing the army in a bad light.
Films, particularly documentary films on communal violence are about violence that has already
been practised by someone. A film is only a messenger. One can understand why the state wants
to shoot the messenger but why should a filmmaker provide it legitimacy?
Forty years ago, as a young film enthusiast, I asked Benegal at a seminar whether a filmmaker
ought not to be aware of the power of the medium and therefore careful of what and how to
depict something. Benegal ticked me off by saying I had allowed the state to get into my head.
Ironically it seems that the state now resides permanently in the heads of our leading filmmakers.