Sarkar As Censor
The proposed Cinematograph Bill 2010 is geared to cracking down on piracy, but does little to protect freedom of expression, leaving the power to define public order, morality, decency and national interest to the executive wing of government at the centre rather than to people’s representatives, says Sarim Naved
The Cinematograph Act, which regulates cinema in India, is due for a change. Civil society has advocated change for a long time, with voices for and against liberalising (or even strengthening) the censorship regime in India. However, with due respect to those who wish to restrict the transmission of images and ideas through cinema, it is safe to say that the ubiquitous item number in Indian cinema and the increasing number of films dealing directly with what are considered uncomfortable political issues and sexual mores show that the audience is more receptive than ever to new ideas on screen.
When the government announced its intention of bringing in a new Cinematograph Act, it was hoped that there would be major changes in the censorship regime and a much more liberal approach to cinema would be the result. But a look at the draft Cinematograph Bill that the Ministry of Information and Broadcasting has put up on its website and invited comments on, belies such hopes. However, it is pertinent to point out here that the Cinematograph Bill is still at a preliminary stage, and will go through several rounds of consultation, both within the ministry and with people outside, before the Bill is introduced.
The Cinematograph Bill 2010 contemplates some comparatively significant procedural changes: Filmmakers will have the right to be heard before a decision is taken about their films and the central government will have the right to overrule the Central Board of Film Certification (CBFC) on almost every conceivable issue. But as far as the conception of cinema by the state is concerned, the Bill represents no movement at all. Many reasons have been given over the past 60 years for the continuation of the censorship regime, and the introduction of this Bill represents a chance to test whether past rationales can still be justified. It must be pointed out that
in the past ten years two Censor Board chiefs, the late Vijay Anand and Sharmila Tagore, have commented that censorship be done away with (although Tagore has clarified that she is not in favour of pornographic films being allowed).
The preface to the proposed Bill states that a new Cinematograph Act is being contemplated as the existing law “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”. As such, the stated intention of the Bill is pointedly unambitious. It only wants to bring in a new rating system while leaving the structure of the Censor Board intact. The Censor Board will still have the power to remove ‘sex scenes’ from Love, Sex aur Dhokha, except that instead of an ‘A’ certificate, they can now give the film a ’15+’ certificate. Under the proposed Bill, instead of the current ‘U’, ‘U/A’ and ‘A’ categories, the new categories will be ‘U’, ’12+’, ’15+’ and ‘A’.
Benign as the changes suggested by the Bill may seem, they incorporate the potential for great harm, and luckily, the more dangerous provisions are unlikely to go un-amended through the consultation process. For instance, the term ‘exhibition’ has been defined as, “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”. This is a definition that is very wide and encompasses all forms of exhibition, whether private or public, inside the home or outside, and goes against judicial interpretation of the scope of regulation under the Cinematograph Act. Courts have tended to define “exhibition” more narrowly, focusing on the “publicness” of the act. This definition of “exhibition”, taken in conjunction with the provision regarding licensing, leads to the conclusion that even viewing a DVD at home would need a license for exhibition.
A more problematic provision is one which criminalises the act of making copies of the negative of a film or a film itself. As one of the stated intentions of this Act is to combat piracy, if a person “rips” a DVD, s/he will be liable to imprisonment and fines. This is the most serious change in the Cinematograph Act. Unfortunately, it criminalises the offence of copyright violation which is anyway punishable under the Copyright Act and serves to confuse the entire body of law relating to copyright. Under copyright law there are exceptions and defences which allow use of intellectual property. This Bill seeks to bypass all such protections.
The new Cinematograph Bill could have been a great opportunity to change the entire structure of regulation of films in India. The motivation for film regulation—which essentially stems from a distrust of its people by the state and the fear that they will use the medium to harm the state or its citizens—is not so justifiable now, when the Republic of India has been in existence for more than 60 years and when its stability is no longer in question. Does government fear that a film may cause people to commit rape, murder and other offences? All those offences are covered under the Indian Penal Code in any case and incitement to offences against a class of people is also a separate offence under the Indian Penal Code.
In fact, the definition of abetment under Section 107 of the Indian Penal Code also covers anyone who instigates the offender to commit an offence. The Penal Code is more than enough to take care of blatant incitement by a filmmaker.
As such, having a system of censorship in place becomes a hindrance to free speech.
This is not to argue for a laissez faire deal for filmmakers. Issues such as child pornography are unfortunately very real problems, and in such cases, censorship does make sense because in such a case it is the act of filming itself that constitutes the offence and exhibition of such material cannot be allowed.
However, to treat all films, productions and documentaries with the same suspicion is highly questionable. In fact, the many instances where the judiciary has intervened to aid the release of a film or documentary blocked by the Censor Board shows that the system of censorship in this country is much more restrictive in practice than it is
meant to be.
The proposed Bill once again gives the central government the power to be the final arbiter of the fate of any film, making the entire process subject to the whims and fancies of the government in power. The central government can order the Central Board of Film Certification (CBFC) to revoke the certificate given to a film if it is of the opinion that “the film or any part of it is 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 is an extremely wide discretion that the central government has reserved for itself. As per Article 19(2) of the Constitution, these are the grounds on which the state can make laws to reasonably restrict the freedom of speech and expression. What the proposed Cinematograph Bill and specifically this section does is appropriate this power of reasonable restriction from the legislature to the executive. Through the structure of this Bill and indeed the existing Act too, the central government has become the sole arbiter of what public order, decency, morality and national interest, inter alia, mean. Surely the delegation of constitutional authority of such magnitude should not be permissible. Even if the Supreme Court has ruled that the Cinematograph Act is a reasonable restriction substantively, procedurally this clause does seem to clash with the constitutional provision.
The proposed Bill has tried to incorporate some provisions which will enable the exhibition of films, rather than their restriction. Firstly, Section 23 of the proposed Bill states that no court shall take cognizance of any offence under the proposed Bill unless there is a complaint made in writing by an “authorised officer” which term is defined as meaning either a district magistrate, a sub-divisional magistrate; or a commissioner of police or any other officer as may be notified in the Official Gazette. Thus, no prosecution can be launched against any person without such a written complaint. This is a beneficial provision as the requirement of a written complaint from the above-mentioned authorities should provide a degree of protection from arbitrary targeting by introducing a level of scrutiny before criminal proceedings are initiated.
In a similar vein, where the existing Act mentions that any police officer can enter any place where an illegal exhibition is taking place and seize the materials used for the exhibition, this power has now been restricted to police officers carrying the rank of sub-inspector and above. This again ensures some degree of thought from the police before any search and seizure is made.
Lastly, Sections 25 and 26 of the proposed Bill have brought in a significant change regarding the licensing authority. Under the Act, a person can exhibit a film only in a place that is licensed for this purpose. The district magistrate has now been fixed as the licensing authority and unlike in the existing Act, state governments no longer have the power to appoint another licensing authority in place of the district magistrate, thus reducing the chances of arbitrary decisions and governmental interference by appointing any person of their choice, who may not even be a government functionary, to this post. It is only in the union territories that some other authority may be appointed as licensing authority, but that is because union territory administration is structured differently.
As things stand, what films a citizen of India gets to see in cinema theatres is at the discretion of the CBFC, and above all, the central government. The central government has in appropriating to itself the right to revoke the certificate of a film on the grounds mentioned in Article 19 (2), reserved to itself a privilege that belongs solely to parliament and the state legislatures. Reasonable restrictions can be imposed under the Constitution, and unfettered power to restrict should not be considered a reasonable restriction. The new Bill, in continuing the same structure of censorship that has been in force for more than half-a-century, does a disservice to the people of this country. Infochange