Legislation on the censorship of films in India
In 1952 a consolidating Act was passed and it is Act 37 of 1952 (amended in 1959 by Act 3 of 1959) and that is the present statutory provision on the subject. It established a Board of Film Censors and provided for Advisory Panels at Regional Centres.
Every person desiring to exhibit any film has to apply for a certificate and the Board after examining the film or having the film examined deals with it by:
- sanctioning the film for unrestricted public exhibition;
- sanctioning the film for public exhibition restricted to adults;
- directing such excisions and modifications as it thinks fit, before sanctioning the film for unrestricted public exhibition or for public exhibition restricted to adults, as the case may be; or
- refusing to sanction the film for public exhibition.
The film producer is allowed to represent his views before action under (b) (c) and (d) is taken. The sanction under (a) is by granting a ‘U’ certificate and under (b) by an ‘A’ certificate and the certificates are valid for ten years.
Principles for guidance in certifying films.
The Act then lays down the principles for guidance and for appeals in ss. 5B and _5C respectively.
These sections may be. read here
“5B. principles for guidance in certifying films.
- 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, 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.
- 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.”
The second sub- section of S. 5B enables the Central Government to state the principles to guide the censoring authority, by issuing directions. In furtherance of this power the Central Government has given directions to the Board of Film Censors.
They are divided into General Principles three in number, followed by directions for their application in what are called ‘ruled’.
We may quote the General Principles here
- No picture shall be certified for public exhibition which will lower the moral standards of those who see it. Hence, the sympathy of the audience shall not be thrown on the side of crime, wrong-doing, evil or sin.
- Standards of life, having regard to the standards of the country and the people to which the story relates, shall not be so portrayed as to deprave the morality of the audience.
- The prevailing laws shall not be so ridiculed as to create sympathy for violation of such laws.
Application of the General Principles
The application of the General Principles is indicated in the four sections of the rules. The first section deals with films which are considered unsuitable for public exhibition. This section is divided into clauses A to F.
Clause A deals with the delineation of crime, B with that of vice or immorality, C with that of relations between sexes, D with the exhibition of human form, E with the bringing into contempt of armed forces, or the public authorities entrusted with the administration of law and order and F with the protection of the susceptibilities of foreign nations and religious communities, with fomenting social unrest or discontent to such an extent as to incite people to crime and promoting disorder, violence, a breach of the law ‘or disaffection or resistance to Government.
Clauses E and F are further explained by stating what is un- suitable and what is objectionable in relation to the topics under those clauses.
Section 11 then enumerates subjects which may be objectionable in a context in which either they amount to indecency, immorality, illegality or incitement to commit a breach of the law.
Section III then provides “It is not proposed that certification of a film should be refused altogether, or that it should be certified as suitable for adult audiences only, where the deletion of a part or parts, will render it suitable for unrestricted public exhibition or for exhibition restricted to adults, and such deletion is made, unless the film is such as to deprave the majority of the audience and even excisions will not cure the defects.”
Section IV deals with the protection of young persons and enjoins refusal of a certificate for unrestricted public exhibition in respect of a film depicting a story or containing incidents unsuitable for young persons: Emphasis in this connection is laid in particular upon-
- anything which may strike terror in a young person, e.g., scenes depicting ghosts, brutality, mutilations, torture, cruelty, etc.;
- anything tending to disrupt domestic harmony or the confidence of a child in its parents, eg. scenes depicting parents quarrelling violently, or one of them striking the other, or one or both of them behaving immorally;
- anything tending to make a person of tender years insensitive to cruelty to others or to animals.”
In dealing with crime under section I clause A, the glorification or extenuation of crime, depicting the modus operandi of criminals, enlisting admiration or sympathy for smiminals, holding up to contempt the forces of law against crime etc. are indicated, as making the film unsuitable for exhibition.
In Clause B similar directions are given with regard to vice and immoral acts and vicious and immoral persons.
In Clause C the unsuitability arises from lowering the sacredness of the institution of marriage and depicting rape, seduction and criminal assaults on women, immoral traffic in women, soliciting prostitution or procuration, illicit sexual relations, excessively passionate love scenes, indelicate sexual situations and scenes suggestive of immorality.
In Clause D the exhibition of human form in nakedness or indecorously or suggestively dressed and indecorous and sensuous postures are condemned.
In Section 11 are mentioned confinements, details of surgical operations, venereal diseases and loathsome diseases like leprosy and sores, suicide or genocide, female under clothing, indecorous dancing, importation of women, cruelty to children, torture of adults, brutal fighting, gruesome murders or scenes of strangulation, executions, mutilations and bleeding, cruelty to animals, drunkenness or drinking not essential to the theme of- the story, traffic and use of drugs, class hatred, horrors of war, horror as a predominant element, scenes likely to afford information to the enemy in time of war, exploitation of tragic incidents of war, blackmail associated with immorality, intimate biological studies, crippled limbs or malformations, gross travesties of administration of justice I and defamation of any living person.
It will be noticed that the control is both thematic and episodic. If the theme offends the rules and either with or without excision of the offending parts, the film remains still offensive, the certificate is refused. if the excisions can remove its offensiveness, the film is granted a certificate. Certifiable films are classified according to their suitability for adults or-young people. This is the essential working of Censorship of motion pictures in our country.
Appeals- 5C.
Any person applying for a certificate in respect of a film who is aggrieved by any order of the Board—
- refusing to grant a certificate; or
- granting only an “A” certificate; or
- directing the applicant to carry out any excisions or modifications;
may, within thirty days from the date of such order, appeal to the Central Government, and the Central Government may, after such inquiry into the matter as it considers necessary and after giving the appellant an opportunity for representing his views in the matter, make such order in relation thereto as it thinks fit.
Right of Central Government
By s.6, the Central Government has reserved a general revising power which may be exercised during the pendency of a film before the Board and even after it is certified.
Under the, latter part of this power the Central Government may cancel a certificate already granted or change the ‘U’ certificate into an ‘A’ certificate or may suspend for 2 months the exhibition of any film.
Judicial Decision
In K.A.Abbas’s case[1], censorship of films had been challenged in the Supreme Court first time. In this case, court examined the laws and rules on censorship in detail. The main question in this case was that, pre-censorship is offend to fundamental right of free speech in India.
We are reproducing here the finding and reasoning here, which Honorable supreme court found in the case.
Censorship on Cinema and other Arts
Freedom of expression cannot, and should not, be interpreted as a licence for the cinemagnates to make money by pandering to, and thereby propagating, shoddy and vulgar taste. Further it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression.
This arises from 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 product 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.
Therefore, classification of films into two categories of ‘U’ films and ‘A’ films is a reasonable classification. It is also for this reason that motion picture must be regarded differently from other forms of speech and expression. 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. Therefore, the treatment of the latter on a different footing is also a valid classification.
Fundamental Right of Free Speech and Pre-censorship
Article 19(1)(a) and (2) of the Constitution contain the guarantee of the right and the restraints that may be put upon that right by a law to be made by Parliament.
They may be read here:
“19. Protection of certain rights regarding freedom of speech, etc.
- All citizens shall have the right—
- to freedom of speech and expression;
- Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in 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 in relation to contempt of court, defamation or incitement to an offence.”
Censorship of films, their classification according to age groups and their suitability for unrestricted exhibition with or without excisions is regarded as a valid exercise of power in the interests of public morality, decency etc. This is not to be construed as necessarily offending the freedom of speech and expression.
This is because social interest of the people overrides individual freedom. Whether we regard the state as the paren patriae or as guardian and promoter of general welfare, we have to concede, that these restraints on liberty may be justified by their absolute necessity and clear purpose. Social interests take in not only the interests of the community but also individual interests which cannot be ignored.
A balance has therefore to be struck between the rival claims by reconciling them. The larger interests of the community require the formulation of policies and regulations to combat dishonesty, corruption, gambling, vice and other things of immoral tendency and things which affect the security of the, State and the preservation of public order and tranquillity.
Censorship in India (and pre-censorship is not different in quality) has full justification in the field of the exhibition of cinema films. We need not generalize about other forms of speech and expression here for each such fundamental right has a different content and importance. The censorship imposed on the making and exhibition of films is in the interests of society. If the regulations venture into something which goes beyond this legitimate opening to restrictions, they can be questioned on the ground that a legitimate power is being abused. We hold, therefore, that censorship of films including prior restraint is justified under our Constitution.
How far can these restrictions go?
The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands. But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.
The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life.
We must not look upon such human relationships as banned in to and for ever from human thought and must give scope for talent to put them before society. The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal form and the line is to be drawn where the average man moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value.
If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman’s legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth. Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censors’ scissors.
Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother. When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes. No one after viewing these episodes would think that patricide or incest with one’s own mother is permissible or suicide in such circumstances or tearing out one’s own eyes is a natural consequence. And yet if one goes by the letter of the directions the film cannot be shown.
Similarly, scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection. If that were so Verrier Elwyn’s Phulmat of the Hills or the same episode in Henryson’s Testament of Cresseid (from where Verrier Elwyn borrowed the idea) would never see the light of the day.
Again carnage and bloodshed may have historical value and the depiction of such scenes as the sack of Delhi by Nadirshah may be permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila. If Nadir Shah made golgothas of skulls, must we leave them out of the story because people must be made to view a historical theme without true history?
Rape in all its nakedness may be objectionable but Voltaire’s ‘Candide’ would be meaningless without Cunegonde’s episode with the soldier and the story of Lucrece could never be depicted on the screen.
Therefore, it is not the elements of rape, leprosy, sexual immorality which should attract the censor’s scissors but how the theme is handled by the producer. It must, however, be remembered that the, cinematograph is a powerful medium and its appeal is different. The horrors of war as depicted in the famous etchings of Goya do not horrify one so much as the same scenes rendered in colour and with sound and movement would do. We may view a documentary on the erotic tableaux from our ancient temples with equanimity or read the Kamasutra but a documentary from them as a practical sexual guide would be abhorrent. We have said all this to show that the items mentioned in the directions are not by themselves defective.
It was for this purpose that this Court was at pains to point out in Ranjit D. Udeshi’s case certain considerations for the guidance of censorship of books. We think that those guides work as well here.
Censorship on books and Films
In Ranjit D. Udeshi’s case[2] Supreme court laid down certain Principles on which the obscenity of a book was to be considered with a view to deciding whether the book should be allowed to circulate or withdrawn. Those principles apply mutatis mutandis to films and also other areas besides obscenity.
We may reproduce them here as summarized by the Khosla Committee:
“The Supreme Court laid down the following principles which must be carefully studied and applied by our censors when they have to deal with a film said to be objectionable on the ground of indecency or immorality:-
(1) Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.
(2) Comparison of one book with another to find the extent of permissible action is not necessary.
(3) The delicate task of deciding what is artistic and what is obscene has to be performed by courts and in the last resort, by the Supreme Court and so, oral evidence of men of literature or others on the question of obscenity is not relevant.
(4) An overall view of the obscene matter in the setting of the whole work would of course be necessary but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall.
(5) The interest s of contemporary society and particularly the influence of the book etc., on it must not be overlooked.
(6) Where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked.
(7) Treating with sex in a manner offensive to public decency or morality which are the words of our Fundamental Law judged by our national standards and considered likely to pender to lascivious, prurient or sexually precocious minds must determine the result.
(8) When there is propagation of ideas, opinions and information or public interests or profits, the interests of society may tilt the scales in favour of free speech and expression. Thus books on medical science with intimate illustrations and photographs though in a sense immodest, are not to be considered obscene, but the same illustrations and photographs collected in a book from without the medical text would certainly be considered to be obscene.
(9) Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech or expression. Obscenity is treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and, decency.
(10) Knowledge, is not a part of the guilty act. The offender’s knowledge of the obscenity of the book is not required under the law and it is a case of strict liability.”
Application of these principles does not seek to whittle down the fundamental right of free speech and expression beyond the limits permissible under our Constitution for however high or cherished that right it does not go to pervert or harm society and the line has to be drawn somewhere.
As was observed in the same case: “. ….. The test which we evolve must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not………..”
[1] K. A. Abbas vs The Union Of India & Anr 1971 AIR 481, 1971 SCR (2) 446
[2] Ranjit D. Udeshi vs State Of Maharashtra
1965 AIR 881, 1965 SCR (1) 65