COMMENTARY

A New Pair of Scissors: The Draft Cinematograph Bill 2010

Anjali Monteiro, K P Jayasankar

minds of impressionable cinemagoers, driving them to commit acts of violence, sexual depravation and the like. Interestingly, the image is seen as belonging to a different category from the printed word. According to Justice Hidayatullah of the Supreme Court:
The instant appeal of the motion picture, its versatility, realism (often surrealism), and its coordination of the visual and aural senses... 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. The motion picture is able to stir up emotions more deeply than any other form of art. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to emulate or imitate what they have seen...A person reading a book or other writing or hearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture (K A Abbas vs Union of India (1970 (2) SCC 780), cited in R Hazari, Sense and Censorship, in Halsburys Law Monthly, http://www. halsburys.in/sense-and-censorship.html).

The draft Cinematograph Bill, 2010 does not question the simplistic understanding of the media regarding censorship, nor is there any recognition of the fact that the modes of production and consumption of the media are no longer easily amenable to centralised control. This notion of censorship is inherently elitist, premised on the superior wisdom of the privileged few, including the members of the Central Board of Film Certification. There is no clear procedure or set of norms laid down for the selection of these guardians of decency and morality, either in the Cinematograph Act of 1952 or in the draft bill.

The authors would like to thank Siddharth Narrain of Alternative Law Forum for his inputs. Anjali Monteiro and K P Jayasankar (cmcs.tiss@gmail.com) are both film-makers associated with the Centre for Media and Cultural Studies, Tata Institute of Social Sciences, Mumbai.
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ensorship in India comes in many flavours and all of us have experienced its myriad avatars. The censorship of the market (which uses profit as the sole criterion for content selection) and of the street (by the self-appointed upholders of Indian culture) are supported and encouraged by the censorship of the State, which is taken for granted by many as natural, necessary and inevitable. This addiction to censorship is shared by political parties and religious organisations of all hues. The draft Cinematograph Bill of 2010 breathes new life into this outdated practice. In India today, the only sections of the media that are subject to pre-censorship are film and theatre. Film censorship is guided by the Cinematograph Act of 1952, which has been regarded by many as a restrictive act, based on Victorian morality and elitist notions of censorship. This is soon to be replaced by a revised Cinematograph Act of 2010; a draft bill was recently posted on the Ministry of Information and Broadcasting web site (it has since been removed), for discussion and comment. Given the dramatic changes that have taken place in the cultural and technological landscapes of India and indeed the world, one might have imagined that some recognition of this would have informed the revised bill, which is slated to be tabled in the monsoon session of Parliament. Unfortunately, this is not the case. There is no questioning of the simplistic understanding of the media that censorship is based upon; nor is there any recognition of the fact that the modes of production and consumption of the media are no longer easily amenable to centralised control.

Hence, to put it crudely, the Central Board of Film Certification (CBFC) has to act as a patriarchal filter, on behalf of the State, to protect all those unfortunate less powerful others (children, women, poor people, villagers, illiterates, etc) who lack in judgment and discrimination and are hence easily swayed by the power of the image. This notion of direct impact has been seriously discredited within the field of media studies; there is a lot of research and writing which establishes that the relationships between spectators and media texts are complex, unpredictable and a result of negotiations between the agendas of the text and the agendas of the spectator. The cinematic text itself is not a simple message in a bottle, tied to a singular meaning, but subject to multiple readings, which makes the project of censorship itself somewhat doomed to failure:
Meanings are like eels, they slip out of your grasp. How will the censors deal with someone who chooses to read the unprintables in the Oxford Dictionary of English? They have been able to do precious little with film songs that play on double entendre. Dada Kondke, the popular Marathi film-maker/actor has been their bane. During the Emergency, all

Patriarchal Filter
As campaigners for freedom of expression have repeatedly pointed out, film precensorship is based on the fundamentally flawed assumption of the immense harm that the image can cause to the hearts and
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newspapers were under a tight regime of censorship. The Indian Express responded by leaving its Editorial column blank. The censors had a taste of the gaping abyss of meanings (K P Jayasankar and A Monteiro, Cen sorship ke Peeche Kya Hai in N Rajan (ed.), Practising Journalism, Sage, 2005).

This notion of censorship is also inherently elitist, premised on the superior wisdom of the privileged few, including the members of the CBFC, who could easily ferret out any potential violation of decency and public order as well as avoid getting corrupted by the seductive and evil ploys of cinema. It is interesting to note that there is no clear procedure or set of norms laid down for the selection of these guardians of decency and morality, either in the Cinematograph Act of 1952 or in the draft bill. In practice, it is the government of the day that chooses the members of the CBFC as well as of the regional panels in the different states. Needless to say, many of the members of these august bodies have nothing to do with cinema and have little understanding of how cinematic texts work.1 There is also a liberal argument in favour of State censorship. It is a common belief that if there were no censorship, how could society have any control over the proliferation of hate speech or child pornography, for instance? According to this argument, a moderate degree of enlightened censorship would help ensure that certain universal values are upheld. The problem with this argument is its casting of state censorship as a panacea for ills such as hate speech. Our own experience tells us that despite the rigorous regime of film pre-censorship, neither hate speech nor child pornography are on the decline. Media technologies have developed in ways that make it difficult, if not impossible for any centralised agency to control the flows of images and words. Moreover, there are other laws of the land which could be invoked to crack down on child pornography and other illegal and unconstitutional acts. What is the need for film pre-censorship? How does it help to control something which is clearly taking place outside the space of the legal? Banning is no solution; we need to discover ways of dialoguing and critiquing texts that do not agree with our own points of view, rather than a knee-jerk reaction of

demanding a ban. Unfortunately, we live in increasingly censorious times, where demands for bans and vandalism by those whose sentiments are hurt by affronts to Indian culture are the stuff that many political parties and groups thrive on. This vigilante censorship is a sure-fire way of garnering media attention.

Perpetuating State Power

Leaving aside for the moment these broad critiques of the act of film censorship, let us get back to the specifics of the new bill. The rationale for the proposed changes is that the act needs to be made contemporary in order to make the process of certification of films for exhibition in tune with the changed times and also make it an effective tool to combat piracy (Preamble to the Draft Cinematograph Bill, 2010). It is not at all clear how the draft bill seeks to respond to the changed times. One would have expected a movement in the direction of less restrictions; instead, the proposed bill has dangerously extended the purview of censorship by blurring the distinction between public and private exhibition. While the 1952 Act restricts itself to public exhibition, with no clear definition of what constitutes public, the draft bill adds to the confusion, with its broad formulation of exhibition:
Exhibition means display of a cinematograph film or making available a cinematograph film to persons not directly connected with the production, distribution, promotion or certification of that film (Draft Cinematograph Bill, 2010).

proposed act. This clearly jeopardises the freedom of thought and expression, making it possible for the State to clamp down on voices of dissent, even more viciously than was previously possible. With the rise of new technologies of dissemination and consumption, it is important to clearly define the notion of public exhibition, so that the act of cinema viewing itself is not criminalised and subject to State control. Adding to this dangerous extension of State power is the proviso that the government could revoke certification by the CBFC, on grounds of the film being against the interest 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 clause is so overarching as to permit its partisan misuse by the governments in power. As pointed out by Narrain:
Currently, the draft bill gives the central government the power to suspend any certificate issued by the CBFC, by taking recourse to Section 9 (1) of this bill. There is no reason for the central government to enjoy such power over the decision of a validly constituted statutory authority. The occasions on which a films certificate can be suspended should be explicitly listed out. Further section 15 of the Act gives unfettered power to the ministry to censor or even uncertify a film. There is no remedy available to a filmmaker in such a case. This section undoes the structure of the entire Cinematograph Act (Siddharth Narrain, Disciplining Documentary, Himal South Asian, http://www. himalmag.com/Disciplining-Documentary_ fnw57.html).

By this simplistic definition, screenings in classrooms, clubs, museums, even watching a marriage video at home, or on a cell phone or a hand-held device could all attract the punitive provisions of this

The moot question is who defines what is decency or morality or what is likely to incite the commission of any offence. We have umpteen examples in recent

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years of how public morality and Indian culture have been offended by such innocuous acts as couples sitting together in parks or pubs or young people using a cyber caf or even an innocent remark by the actress Khushboo about the need for precautions if young people were engaging in premarital sex. These occasions have witnessed a vigilante street censorship of the most virulent kind; the State has offered little protection to the victims of such attacks (even a well-known painter like M F Hussain had to flee the country to escape the fundamentalist mobs baying for his blood) and has often abetted the perpetrators. We have also experienced, in the past few decades, state-sponsored pogroms and massacres of marginalised groups of citizens in the name of law and order. Given this scenario, it is little wonder that citizens of the country have scant faith in the ability of the State to act as the ultimate arbiter of decency, morality and public order. The draft bill makes no distinctions between feature and documentary film, choosing to club everything under the loose term film. Documentary film-makers have long been campaigning for a special status for documentary film as far as certification is concerned.2 While the ostensible rationale for State censorship is the need to curb violence and indecency, there have been many instances where the State has used the Cinematograph Act to stifle the voices of documentary filmmakers, like Anand Patwardhan and so many others. In several cases, the film-makers were forced to seek redressal for these blatant acts of political censorship from the judiciary. In the light of the sweeping powers given to the State by the blurring of public and private exhibition and the authority to override the CBFCs decisions, the restriction of freedom of expression of documentary film-makers opposing or questioning the State is undoubtedly facilitated by the proposed act. One of the changes that the draft bill envisages is an increase in the number of certification categories from three to four: U, 12+, 15+ and A. The rationale for these milestones like 12+ and 15+ remains a mystery. Moreover, as long as the CBFC has a right to deny a certificate or to impose often arbitrary cuts, the process could by no means be called certification
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and is clearly a crudely restrictive process of censorship, despite repackaging the old act, with new terminology. In 1982, when the Cinematograph Act was amended to change the name of the Central Board of Film Censorship to the Central Board of Film Certification, this was a mere euphemism; there was no substantive change in the role or powers of the CBFC. This continues to be the case in the proposed new legislation.

Censorship Is Sacred
With the growth of digital imaging technologies and the Internet, the proliferation of unauthorised media content has become an issue of concern to media producers. With the inclusion of the piracy within its ambit, the draft bill clearly oversteps its brief; there are other laws like the Copyright Act to regulate such unauthorised content creation and dissemination. Under the proposed bill any copying of film material is seen as a criminal act:
Under copyright law there are exceptions and defences which allow use of intellectual property. This bill seeks to bypass all such protections (S Naved, Sarkar as Censor, Info change News & Features, May 2010, http:// infochangeindia.org/Media/Related-Analysis/ Sarkar-as-censor.html).

A group of concerned citizens and organisations3 have endorsed a representation drafted by the Alternative Law Forum, Bangalore, which critiques the proposed bill and raises many of the issues discussed above:
The proposed draft law has not overhauled the existing law, choosing instead to make a few superficial changes. The Ministry should move towards thinking of a Cinematograph Act for the 21st and not the 19th century, in which case what would be required for it to be a law that actually promotes cinema rather than to continue to restrict it. The paternalistic logic that vulnerable audiences need to be protected from images of violence, nudity, obscenity, etc, is completely irrational when audiences are encountering such images on a routine basis on television, video, the Internet, and a host of other new technologies that are commonly used in India today (Representation to Ministry of Information and Broadcasting, Government of India, dated April 23, 2010, accessed at http://www.altlawforum.org/ law-and-media/campaigns/cinematographact-final%20submission.doc/view).

film-makers, that the system of precensorship of films by the State should be scrapped as it is violative of freedom of expression. In many other countries across the world, for instance in the US, there is no censorship, but a process of certification, often managed by the film industry itself. Within the censor board itself, there have been arguments in favour of moving from censorship to certification. The late Vijay Anand, when he was chairman of the CBFC, created a furore which finally led to his resignation because he suggested that censorship be replaced by classification and that there should be separate theatres which could show adult rated content. Censorship appears to be a holy cow, which no political party is willing to domesticate. The only way to fight this censorious regime of truth is for civil society to begin to question the simplistic assumptions of media harm and of State control as a necessary evil. When voices from multiple positions begin to speak up against the normality of cinema pre-censorship, when questions begin to be raised about why after 58 years there are so few changes in the way the law conceives and implements film censorship, perhaps there is hope that the proposed bill might go through a process of modification to make it more in touch with contemporary media consumption practices and the cultural spaces within which they are situated. We do not need a new pair of scissors.
Notes
1 The authors have had the privilege of conducting several workshops on media literacy for the CBFC as well as the regional panels in Mumbai and Bangalore. 2 In fact, documentary film-makers are among the most proactive groups who have been consistently campaigning against pre-censorship. The collective Vikalp Films for Freedom has over 300 members and has chapters in many parts of India. 3 Including Vikalp and Screenwriters Association, among others.

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