Censorship has no space in a mature democracy.

The jury is out, though, on

the kind of democracy we are
Cinema as an art form has always drawn a disproportionate interest from the
Indian state and the judiciary. Their approach is best encapsulated in this
excerpt from the last major constitutional challenge to censorship law, nearly
50 years ago, in the landmark S. Rangarajan v P. Jagjivan Ram case: Movie
motivates thought and action and assures a high degree of attention and
retention. It makes its impact simultaneously arousing the visual and aural
senses... The focusing of an intense light on a screen with the dramatizing of
facts and opinion makes the ideas more effective. The combination of act and
speech, sight and sound in semi-darkness of the theatre with elimination of all
distracting ideas will have an impact in the minds of spectators. (Paragraph
10)
The Supreme Court went on to cite an academic study according to which
continual exposure to films of a similar character would significantly affect
the attitude of an individual or a group. On this basis, the Supreme Court
deemed pre-censorship necessary.
The Rangarajan judgment gave a final stamp of judicial approval to the notion
of a nanny state, treating its audiences as infantile subjects, to be shepherded
carefully through the treacherous universe of cinema.

Colonial hangover
The Cinematograph Act of 1952 was derived from colonial censorship laws.
But the world has changed dramatically: audiences no longer run out of
movie halls like they did watching The Arrival of a Train, fearful of the
locomotive advancing towards them. Even if the masses were somehow
extra gullible in the India of the 1960s, the average visual literacy level
has gone up dramatically in this age of 24x7 TV, YouTube and video-selfies.
The state considers every citizen rational enough to make serious, life-
affecting decisions like who to vote for (at 18), who to marry (at 21), what
career to choose, investments to make etc but, cross the threshold and enter a
cinema theatre and the citizen turns into a bumbling idiot, unable to discern
what to watch or not, to be lent a helping hand by the Pahlaj Nihalani-fied
Central Board of Film Certification (CBFC).
Yes, India is a diverse society. Yes, there will always be grievances from
some section of civil society. And yes, we need an arbitration mechanism to
address a wide range of concerns. We need a multi-layered solution to the
absurd censorship regime in India. The industry must set up the Film Council
of India to deal with civil society grievances. The CBFCs scope must be
limited to certification, with no powers to maim, mutilate or ban any film. For
any film it finds objectionable, the CBFC should refer it to the Film
Certification Tribunal. The tribunal comprising retired judges, lawyers,
filmmakers, writers and artists must become the sole forum for a considered
dialogue with the filmmaker concerning any censorship of their work.

Stop being a nanny

The final recommendations of the Shyam Benegal Committee are
disappointing as they chose not to examine any of the reasonable
restrictions, directly borrowed from Article 19(2) into the Cinematograph
Act. Much of the political censorship that our cinema, particularly
documentary films, are subjected to stem from these holy cow exceptions,
especially as they allow politically partisan members of the CBFC to
intervene and subvert free speech.
Censorship has no space in a mature democracy. The jury is out, though, on
the kind of democracy we are with the government actually playing a bigger
nanny, regulating not just cinema but our daily lives, rationing currency,
petrol, even food portions, banning liquor, meat and criminalising love. In
these times of beef-lynchings, couple-thrashings, legally-sanctioned goon
squads and fatwas, intolerance will beget worse censorship in the coming
years.
The film certification guidelines are abstract, vague and
imprecise, leading to rampant erratic and subjective
interpretations of scenes/language in a film amounting to
unfair curtailment of the filmmakers freedom of expression.
All films, music videos etc meant for public exhibition in a cinema hall irrespective of
their length or format celluloid, digital or on DVD etc are subject to certification
by the Central Board of Film Certification (CBFC) established under
the Cinematograph Act 1952.

The Cinematograph (Certification) Rules, 1983, and the guidelines issued in 1991 by
the Central government prescribe the regulatory structure in accordance to which
CBFC discharges its functions. Through my writ petition(C) No. 187 of 2017,
admitted by the Supreme Court on Monday, I have challenged the constitutional
validity of certain provisions of all these three codifications which infringe the
fundamental rights of artists as well as audiences. No one had challenged the vires of
these provisions for the past 47 years.

In light of new technologies and developments, considering the paradigm shift in the
mass media, it is the need of this hour that we redefine, reclaim and resurrect the
contours of our individual freedoms. Law must adapt itself to cope with new
situations if it has to satisfy human needs and to meet the contemporary problems of
life.

A short recap of history

In 1970, in the matter of K. A. Abbas vs Union Of India, a five-judge bench of the

Supreme Court ruled that cinematographic films in theatres were the most
influential media of mass communication affecting the social mind and, therefore,
the exercise of censorship under the Cinematograph Act was valid and necessary.
The social situation based on which that decision was given has changed to such an
extent that the decision needs to be overruled by a larger bench of the Supreme
Court. Today, modern technology makes dissemination of information available in
real time through a variety of media, many of which are either not regulated or if
regulated, not subjected to pre-censorship.

From 1980, India had Doordarshan as the only television broadcaster. Today, we
have more than 800 registered TV channels along with 1000s of local cable
channels. We have over 780 million TV viewers in India. By June 2017, the number
of internet users shall reach about 450 million. With the onslaught of television and
 internet, we are increasingly interfacing to predominantly cultural data encoded in
the digital form. Thus, its no longer the cinema but the digitised world which is
the 21st century media machine binding the universe. The direct corollary of this is
that if the content presented/exhibited/uploaded on TV or the internet is free of
censorship or pre-censorship, what is the rationale behind the same content getting
cut/altered/deleted and thereby being censored when and if exhibited in a cinema
hall? This amounts to discrimination barred by Article 14 of the constitution. The
attack on our right to equality is being challenged in this context for the first time.

Documentaries which are factual depictions of real life events are closer to news
reports than fiction films. If the broadcast of news and investigative reports are
presented on television and internet without any pre-censorship, the subjection of
documentaries to pre-censorship amounts to discriminatory treatment of similar
entities which is violative of our fundamental rights ensured by Article 14, Article
19(1)(a), and Article 21 of our Constitution. None of the above laws define a
documentary, nor are there any specific rulings by the Supreme Court on this issue.

Since the decision in Abbas, the power of certification as a means of pre-censorship

has been subjected to large scale abuse owing to ambiguity and lack of clear
guidelines of how the power is to be exercised. As a result, the CBFC routinely
demands cuts of scenes or dialogue failing which it denies certificates to films for
arbitrary reasons:

Remove the words Mann ki Baat from a dialogue in the film Sameer
Get a no objection certificate from the Prime Ministers Office for the title of the
film Modi Ka Gaon
The film Lipstick in my Burkha is unsuitable for release since the story is lady-
oriented, their fantasy above life. There are contentious sexual scenes, abusive
words, audio pornography , among others.

Milder abusive words were demanded to be cut from many films whereas films
like Parched, Saat Uchakkey, Udta Punjab were cleared with an A certificate but
without any cuts. On July 31, 2015, the CEO of the CBFC informed the board about
the audit observations made by the Comptroller and Auditor General on the working
of the board. He said that the audit of 2014-15 had observed that CBFC converted
172 A films into UA, and 166 UA films into U during 2012-15, without taking any
law or provision into account. It had also observed that there were inconsistencies in
the time taken by CBFC for issue of certificates to various producers.

The Aurangabad bench of the Bombay high court has recently set another
bad precedent which was not challenged by the producers of the film Jolly LLB.
After the certification of the film by the CBFC, the bench demanded four cuts in a
scene citing a possible defamation to the judiciary. Till now, the judiciary has
 played a role of a saviour of citizens fundamental rights. With this decision, one
more predator of artistic freedom has emerged which needs to be seriously
scrutinised.

What I am asking the court to do

The writ petition I have filed is challenging the constitutional validity of Sections 2,
3(1), 4(1)(iii), 5(1)&(2), 5A(1), 5D(5) of the Cinematograph Act, 1952, and Guidelines
# 1 & 2 dated December 6th, 1991 formed under Section 5B(2) of the said Act, along
with Rules 3, 7(3), 22(2) &(8), 24(2), 32, 33(2) and 43(6) of the Cinematograph
(Certification) Rules, 1983 on the grounds that those are violative of Articles 14, 19
and 21 of the Constitution of India.

Since we are all bound by the constitution, Article 19(2) of which imposes
reasonable restrictions on free speech, we are not challenging the entire
Cinematograph Act but merely some of its provisions.

Among other reliefs, my petition specifically seeks:

1. to quash Section 4(1)(iii) which empowers the CBFC to carry out excisions
amounting to pre-censorship, which is an unreasonable restriction.
2. to declare the present CBFC incompetent to carry on functions under the
Cinematograph Act.
3. to declare Section 5-B inapplicable to section 4(1)(iii) since the guidelines under
Section 5-B are for certification and not for pre- censorship.
4. to quash the said guidelines which are abstract, vague, imprecise leading to rampant
erratic, subjective interpretations of scenes/language in a film amounting to unfair
curtailment of the filmmakers freedom of expression.
5. to increase the categories for certification under Section 4(1) or 5A(1) considering
the age group and commensurate sensibilities of the audience in mind.
6. to remove documentary from the ambit of definition Sections 2( c) and (dd), and to
only require documentaries to include a disclaimer for audiences (eg. about its
suitability for persons above a certain age) that the CBFC can review and approve.
7. to quash certain provisions which provide for appointments of the members of the
board and/or the examining committee, or the revising committee, or even the Film
Certification Appellate Tribunal (FACT), without specifying any qualifications
leading to subjective, erratic, arbitrary interpretation of over-broad, imprecise
guidelines by unqualified members, which in itself is very unfair and amounts to an
unreasonable restriction on the filmmakers freedom of speech.
8. That the recommendations of the Shyam Benegal committee be given effect during
the pendency of this petition.
Many core issues left untouched

I do not believe that freedom of speech is absolute. This position raises the real
problem as to where one draws the line between acceptable and unacceptable
speech. Since the Indian constitution has given us the framework of restrictions
under Article 19(2), I am compelled to bow down to the nine limitations in 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 in relation to
contempt of court, defamation or incitement of offence.

These limitations are over-broad and vulnerable to subjective interpretations. Most

alleged violations of freedom of speech are routinely based on one of these heads. In
India, speech-based offences are cognisable, and that means a police officer has the
authority to make an arrest without a warrant and to commence an investigation
without the prior permission of the court. Thus the burden of approaching the courts
is not on the police/state but on the citizens. So the citizen-victim suffers double
jeopardy her/his right is curtailed plus she/he has to chase the judiciary.

Should even the judiciary have a right to judge the artistic content of a work of art?
In a scenario where the fence itself eats the crop, whom should the artists and their
audiences approach? Similarly the provision for government censorship (under Sec
13 & Sec 16(1)(a) of the Cinematograph Act, 1952) is equally objectionable. All such
acts are disrespectful of autonomy and ought to be condemned.

My present petition has not raised the above core issues. I am challenging the
present structure of the CBFC with a minimal hope that a stringent, fresh paradigm
shall emerge while implementing the restrictions under Article 19(2), and that
censorship will be lifted.