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A CRITICAL ANALYSIS ON CBFC & CLASHES AND

CONTROVERSIES IN INDIAN CINEMAS

- Kaanchi Ahuja and Co-authored by Divanshu Kashyap

ABSTRACT

Censorship is to art as lynching is to justice

- Henry Louis Gates Jr.

Portraying itself as one of the most essential sources of entertainment and information, the
Cinema not only rejoices a very prime positioning in the public domain but also serves as a
tool in impacting the minds and hearts of people worldwide. Down the years, Cinema in India
has reached its own destination, created its own history, and touched its own milestones.

The beginning of the article talks about the role of cinema as a medium of expression. The
article further explains the development of cinema in today’s world and how the cinema is
working as a social monitor.

Afterwards, in the following paragraphs the article talks about the Cinema as a medium of
speech and expression in relation with the Article.19 (1) (a) of the Indian Constitution.
Thereupon, the article deals with the issue of censorship governed by central board of film
certification (CBFC) as an infringement to freedom of speech and expression.

In the subsequent paragraphs, the article deals with the various factors which are infringing
the freedom of speech and expression of Cinema. Further, the involvement of politics, an
autocratic behaviour of CBFC and the problems of filmmakers are also discussed.

In conclusion, the article ends upon stating the methods and suggestions put forward for
maintaining a balance in the works of Central Board of Film Certification (CBFC).

CINEMA: A MEDIUM OF EXPRESSION

Cinema means the process or technique of making motion pictures. It is an artistic expression
and one of the most powerful means of communication. It is widely popular as it possess the
power of captivating the audience through its audio-visual effect. Cinema is not only the source
of entertainment but it also provides us with the ideas, thoughts and suggestions.
DEVELOPMENTS IN TODAY’S TIME

In the beginning of film industry the film-makers sole agenda was entertainment. But in today’s
era, the objectives and aspirations of Indian cinema have changed dramatically. Cinema being
a powerful audio visual medium, problems focusing on social, cultural, political, communal
issues can be projected in a versatile and well framed manner.

Earlier people used to come out of theatres feeling mildly satisfied that two hours were well
spent with some entertainment, action and comedy. But the position has now changed
dramatically. People feel emotionally and psychologically connected to the movies as they are
leaving a greater impact on the targeted audience.

Nowadays, films are working as a social monitor. Films have been effective in projecting social
problems, for example, the film 'Toilet – Ek Prem Katha' well-presented the problem of
sanitation in rural areas, ‘Padman’ depicted the problem of menstrual hygiene and movies such
as ‘PK’ and ‘OMG! Oh my god’ are characterised as thought provoking movies which aims
to remind the audience about the universal message that God is one and fraudulent Godmen
have tried to commercialize religion. Thus it can be seen that the cinema has always done a
remarkable job in creating a type of visual public 'consensus'.

FREEDOM OF SPEECH AND EXPRESION

Speech is God's gift to mankind and it is through speech that a human being conveys his
thoughts, sentiments and feeling to others. "Everyone has the right to freedom of opinion and
expression; the right includes freedom to hold opinions without interference and to seek and
receive and impart information and ideas through any media and regardless of frontiers." 1

The people of India declared in the Preamble of the Constitution, which they gave unto
themselves their resolve to secure to all the citizens liberty of thought and expression. This
resolve is reflected in Article 19(1) (a) - Freedom of Speech and Expression, which is one of
the Articles found in Part III of the Constitution, which enumerates the Fundamental Rights.

1 Universal Declaration of Human Rights (1948)


Explaining the scope of freedom of speech and expression in Romesh Thappar v. State of
Madras,2 the Supreme Court has said that the words "freedom of speech and expression" must
be broadly constructed to include the freedom to circulate one's views by words of mouth or in
writing or through audiovisual instrumentalities. In the famous case of A.K Gopallan v. State
of Madras3 it was held that “A man, as rational being, desires to do many things, but in a civil
society his desires have to be controlled, regulated and reconciled with the exercise of similar
desires by other individuals.”

The guarantee of each of the above right is, therefore, restricted by the Constitution in the larger
interest of the community. The right to freedom of speech and expression is subject to
reasonable restrictions imposed under Article 19 (2) which includes Sovereignty and Security
of the State, Friendly relations with foreign states, Public order, Decency or morality, contempt
of court, defamation and incitement of offence.

A PURVIEW OF THE HISTORY

By 1912, Indians were not only watching films but also making their own. After dozens of
home-grown newsreels and shorts, the first full-length feature, D.G. Phalke’s Raja
Harishchandra, was released in 1913. In 1917, a Bill introduced in the imperial legislative
council noted the “rapid growth in the popularity of cinematograph and increasing number of
such exhibitions in India”. It recommended the creation of a law that would ensure both safety
and the “protection of the public from indecent or otherwise objectionable representations”.
Thus was born the Cinematograph Act of 1918.

A SUITABLE FILM

The 1918 Act gave the District Magistrate the power to issue licenses to exhibitors, and the
government to appoint inspectors to examine and certify films as “suitable for public
exhibition”. It did not, however, mention what the inspectors were to look out for. The Indian
Cinematograph Committee (ICC) of 1927-28 was the first comprehensive inquiry into movie
viewing, censoring and exhibiting habits in the country.

2 Madras (AIR 1950 SC 124),


3
(AIR 1950 SC 27; 1950 SCR 88)
NO POLITICS, PLEASE

Despite the long list of objectionable subjects, Indian cinema wasn’t exactly prurient in the
1920s and 1930s. Hamarun Hindustan4 had an intimate scene with Sulochana and Jal
Merchant. But the British had bigger problems than a few onscreen kisses. “The main
preoccupation of the British was not the passionate love scenes then common in Indian cinema
but the threat of communal discord and the expression of nationalistic sentiments.”5

It wasn’t just a case of official paranoia over newsreels. Indian fiction film directors were
finding ways to talk about the ongoing freedom struggle without mentioning it directly. In a
1970 interview, writer-director K.A. Abbas mentions historical film like Umaji Naik 6 which
replaced the British with other invading forces, and social films like Wrath7 and Apna Ghar8,
which spoke in a kind of code to Indian viewers.

ONE BOARD TO RULE THEM ALL

Over the next few years, a Central Board of Film Censors (CBFC, renamed as Central Board
of Film Certification in 1983) was set up, regional boards were abolished, and U and A were
adopted as certification categories.

The 1952 Cinematograph Act sets out the structure of censorship as it stands today: the
chairperson at the top, then the board members, then the advisory panels. Everyone, from the
chairperson down to the advisory panel members, is a government appointee. And every
government at the Centre has taken advantage of this, staffing the CBFC with party loyalists
eager to make cuts and deny certificates to films critical of the establishment. The Emergency
saw the most blatant use of this power, with Amrit Nahata’s Kissa Kursi Ka 9 banned, and
Shyam Benegal’s Nishant 10
stuck in a bureaucratic tangle, because they were perceived as
critical of the Congress government.

In Motion Picture Association and Ors v. Union of India11, it was stated that the Regulatory
power over cinema is vested to the Union Parliament under Entry 60 in list I (Union List) of

4 1930
5
Light Of Asia: Indian Silent Cinema, 1912-1934
6
1926
7
1930
8
1942
9
1977
10
1975
11
Appeal (Civil) 3766-67 of 1999
the seventh schedule in the Constitution is as under “Sanctioning of cinematograph films for
exhibition” and Entry 33 of List II (State list) is as under “Theatres and dramatic performances;
cinemas subject to provisions of Entry 60 of List 1; sports, entertainments and amusements”.
Part II 12 deals with Certification of films for public exhibition.

What makes the Cinematograph Act such a problematic piece of legislation?

In short, it gives the CBFC—technically, a certification body—vague and vast powers to play
censor. The crux is Section 5B of the Act, which states that any film that 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” can be denied a certificate. It further asks the
government to frame rules according to which the CBFC will function.

These guidelines, which have only increased in number over the years, make for depressing
reading. Censors are tasked with ensuring that films provide “clean and healthy entertainment”
and do not “deprave the morality of the audience”. Many of the rules that the CBFC can cite to
demand cuts are the same as those followed before independence (no endangering of public
order, no depicting the modus operandi of criminals)—which gives one an idea of how archaic
our censorship mindset is.

TAKING CENSORSHIP TO COURT

In 1968, Abbas—already well-known as the screenwriter of Awara and Shree 420—made a


16-minute documentary, Char Shahar Ek Kahani, which had scenes showing prostitution in
Mumbai. The CBFC’s examining committee handed the film an “A” certificate. After a
fruitless appeal to the Central government, Abbas petitioned the Supreme Court, arguing that
pre-censorship was antithetical to freedom of speech and expression (K.A. Abbas v. Union of
India)13. The court ruled against Abbas. “The censorship imposed on the making and exhibition
of films is in the interests of society.”

Though this suit was probably doomed from the start, it did have one useful fallout: the
formation, in 1981, of the Film Certification Appellate Tribunal (FCAT), a quasi-judicial body

12
The Cinematograph Act, 1952
13 1971 AIR 481, 1971 SCR (2) 446
headed by a retired high court judge, which one could approach if unhappy with the decision
of the CBFC’s examining and revising committees.

Initially, there were only two categories of certificate – “U” (unrestricted public exhibition)
and “A” (restricted to adult audiences), but two other categories were added in June, 1983 –
“UA” (unrestricted public exhibition subject to parental guidance for children below the age of
twelve) and “S” (restricted to specialized audiences such as doctors or scientists).

This is pretty much where things stand today. There have been some minor developments in
the years since—films must now carry no-smoking advisories, and it’s almost impossible to
shoot a scene with a live animal.

CLASH AND CONTROVERSIES WITH CBFC

1. GULABI AAINA (2003)

In 2003, the CBFC banned Gulabi Aaina, a film on Indian transsexuals by Sridhar Rangayan.
The film remains banned in India even though it has won international awards and has been
screened extensively the world over.

2. TEXTURES OF LOSS (2012)

Despite the Delhi High court order, the Central Board of Film Certification (CBFC) challenged
Delhi High Court order directing the censorship body to issue a certificate for public screening,
without any cuts, of a documentary on people affected by violence in Kashmir.

3. EN DINO MUZAFFARNAGAR (2014)

Shubhradeep Chakravorty’s documentary on the 2013 communal riots shuttled between the
CBFC and various courts for over three years. During this time, the filmmaker died and the
hopeless struggle is being carried on by his wife Meera Choudhury. It is worth noting that in
spite of high court orders, the CBFC has refused to certify this film.

4. LIPSTICK UNDER MY BURKA (2016)


India’s Central Board of Film Certification sparked uproar when it refused to certify the film,
in a case that again raised fears over creative freedom in the country. Later the Film
Certification Appellate Tribunal (FCAT) ordered the CBFC to release the movie, albeit with a
few cuts and an adult (A) certification. FCAT said “There cannot be any embargo on a women-
oriented film or one containing sexual fantasies and expression of the inner desires of women.”

5. UDTA PUNJAB (2017)

Case where in the judiciary stepped in and whipped the Central Board of Film Certification
on its overreach is that of the controversy surrounding the film Udta Punjab . In this case,
the Board refused to certify the film Udta Punjab which is based on the drug menace prevailing
in the state of Punjab. In addition to its refusal to certify, the board suggested almost 13 cuts in
the movie as a mandatory measure to seek certification. However on appeal by the filmmaker,
the Bombay High Court criticized the Central Board of Film Certification for its conduct
and poor way of handling the issue. The Court made a very important observation that the
Board is not necessarily empowered to censor films the court said “Your job is to certify, not
censor”. The word censor is not found in the Cinematograph Act. The board can make changes
in the film but this power must be exercised in consonance with Constitutional Guarantee and
Supreme Court orders.

6. MOHALLA ASSI (2018)

CBFC had refused to grant certificate to Mohalla Assi in April 2014, for reasons that “the movie
was full of abusive words, derogatory remarks against a particular community, political
linkups, sentiments that are hurting for a particular local area” and that the certification “may
hurt the feelings of community (and create) law and order problem, etc.” However, Delhi
High Court on 11 December, 2017 dismissed Central Board of Film Certification’s (CBFC)
review petition . The court was of the opinion that when viewed in the overall context of the
film, the allegedly objectionable scenes did neither offend sensibility or morality, nor portray
obscenity or vulgarity.14

14 https://www.livemint.com/Politics/4H4qfB2ndeBa1JXu0HOQCO/Delhi-HC-upholds-decision-to-allow-
release-of-Mohalla-Assi.html
EFFECT OF INFRINGEMENT OF FREEDOM OF SPEECH AND
EXPRESSION

1. POLITICS OVER FILMS

Politics over film bans has been an integral part of the country’s social discourse. The most
recent example was that of Padmaavat15, which infuriated the Karni Sena, the self-appointed
conscience keepers of the influential Rajput community. The outfit threatened to block the
film’s release, alleging that parts of it portrayed Queen Padmavati in a derogatory manner.
Thus, Censorship and public outrage are hindering artistic freedom over years.

2. CBFC AND FILM-MAKERS :

In the S Durga 16controversy, the CBFC collaborated with the Ministry of Information and
Broadcasting and the Directorate of Film Festivals to ensure that orders of the Kerala high
court were stymied. This was done by tossing the film from one agency to another – thus
ensuring the festival got over before any decision on the screening could be taken.

Over the years, CBFC has ruthlessly forced filmmakers to show truncated versions of their
work with a ‘take it or leave it’ approach. Very few filmmakers have the stomach or
finances to subject their work to protracted court proceedings. People drop out or accept
what the CBFC has to offer. 17

3. THE AUTOCRATIC BEHAVIOR OF CBFC.

Even after the Supreme Court judgements still the number of films which have been turned
down by the CBFC because of one or two words in them grows by the day. In a documentary
on Amartya Sen, ‘The Argumentative Indian’, the filmmaker was asked to delete words like
‘cow’, Gujarat’ and ‘Hindu India’ And in ‘Jab Harry Met Sejal’ the word ‘intercourse’ was
sought to be removed.

EXECTATION OF TRANSFORMATION

15
2018
16 2017
17
https://thewire.in/film/cbfc-legality-censorship-sc-petition
Hope seemed to surge through the film world when Shyam Benegal was appointed head of
a committee to look into censorship in 2016. Those who greeted this as a stepping stone to
dismantling censorship were probably unaware that there was a similar committee in 2013
under Justice Mukul Mudgal, whose report made many of the suggestions that the Benegal
one did—and which was never implemented. Or that, back in 1969, a committee headed by
G.D. Khosla, and counting amongst its members K.A. Abbas, Umashankar Joshi and R.K.
Narayan, recommended an autonomous, independent censor board.

Letting important reports gather dust is a time-honoured tradition for an opaque


bureaucracy like India’s. In an interview to The Hindu in January 2002, Vijay Anand,
director of Guide and Jewel Thief and the CBFC chief at the time, was asked whether the
media was right to pick on the board’s decisions. “Why not?” he replied. “We are the visible
mouthpiece of a moralistic society.” 18

This is an uncomfortably honest self-assessment, but there’s some truth to the idea that the
board, isn’t entirely to blame. Film censorship in India can only be fixed if the rules
governing it are overhauled. This, in turn, means changing an attitude that has persisted
since the days of the British: the tendency to treat the viewer as incapable.

CONCLUSION

Cinema has been a classic means of expression which has the power to reach all the masses.
In such a scenario the restrictions by CBFC must be confined and limited.

The functions of Central board of film certification must not be ultra vires. The Board should
only play the role of a guiding mechanism for the CBFC and should not be involved in the
censorship of films. Moreover, Certification Board should restrict its domain only to
certification of films in order to categorize the suitability of the film to the audience groups
on the basis of age and maturity. Thus, the Central Board of film Certification must take a
balanced approach while reviewing a film and must take into account that the harmony
between freedom of expression and morals and ideals of the 6society is maintained and
secured.

18https://www.livemint.com/Leisure/j8SzkGgRoXofpxn57F8nZP/100-years-of-film-censorship-in-India.html
(Sat, Jul 14 2018. 08 57 AM)