The villain in the picture

Existing regime of film censorship is unconstitutional and violative of the right to freedom of speech and expression. The proposed revamp has a limited remit.

Written by A G Noorani | Published:February 8, 2016 12:02 am
The Cinematograph Act, 1952 vests in New Delhi overriding powers on censorship of films. The Cinematograph Act, 1952 vests in New Delhi overriding powers on censorship of films.

The appointment of Shyam Benegal as chairman of the committee appointed by the Union government to revamp the Central Board of Film Certification (CBFC) changes neither its uninspiring composition nor its limited remit. The existing regime of film censorship has, for nearly half a century, flouted a solemn assurance given by the government of India to the Supreme Court. It is palpably unconstitutional and violative of the fundamental right to freedom of speech and expression.

The Cinematograph Act, 1952 vests in New Delhi overriding powers on censorship of films. All the authorities, from the chairman to the members of the CBFC to the judge who heads the appellate tribunal, hold office “during the pleasure of the Central Government” — daily wagers, all. “Advisory panels” are set up at each regional centre with a powerful regional officer (RO). Viewing a film is done by an examining committee appointed by the RO. It has an “examining officer”, who could be the RO himself, the CEO or even the chairman’s secretary. The chairman can further refer the case to a “revising committee”. Members of both committees are drawn from members of the panels. If the chairman disagrees with the latter body, the Board examines it or refers it to another revising committee.

The Centre can impose “president’s rule” on the Board by vesting in its handpicked chairman or any other member the powers of the Board in relation to certification of films. The Centre wields uncontrolled revisional powers over everybody, including the appellate tribunal. It can uncertify a film already certified.

Far from progressing, we have regressed. On March 28, 1968, the government of India set up an inquiry committee on film censorship. It was headed by Justice G.D. Khosla, former chief justice of the Punjab High Court, and comprised among its members, persons like R.K. Narayan, Umashankar Joshi, Romesh Thapar and Khwaja Ahmad Abbas. Nargis, Balraj Sahni and Nath Pai were too busy to serve on it. S.S. Vasan, Satyajit Ray, Pahari Sanyal, Kishore Sahu, Prithviraj Kapoor, Sohrab Modi, V. Shantaram, Rajinder Singh Bedi, Hrishikesh Mukerjee, and G.P. Sippy were among those who gave evidence. About 350 memoranda were received. The report submitted on July 26, 1969 was praised by the Supreme Court. It deserves a reprint.

The report did not spare state nepotism. The Board was “a parking place” for officials. Members of the advisory panels are “appointed as a mark of patronage”, it said. The report recommended that: One, some members of the Board should themselves view the films and refer the matter to the whole Board in case they differ; two, the examining committee must be done away with; three, the code of censorship should be drawn up by the Board itself; not by the government; four, the present Board is not an independent body. Its decisions are liable to be set aside by an order of the government.

The report added, “Censorship should be exercised not by a department of the state whose decisions are subject to revision, appeal or interference by the government, but by an independent body which has been given sufficient authority and a sufficient sense of responsibility to deal with the matter finally and irrevocably”. That is, the state cannot override it. “We are firmly of the view that the present system of entrusting the preview of films to a panel of honorary examiners consisting of persons who have little sense of responsibility and who have been appointed in the exercise of governmental patronage, should be completely done away with. It is the censors themselves who must see all films, evaluate them and assume full responsibility for certifying or rejecting them.”

The report created a stir because of the liberal views it expressed after a discussion of six films. They included A Visit, in which Marlene Dietrich is shown entering a swimming pool in the nude. The report said the shot was relevant and brief and the film was entitled to a certificate for universal exhibition. “A film must be taken as a whole, evaluated as a single integrated work of art or entertainment. If, in telling the story, it is logical, relevant or necessary to depict a passionate kiss or a nude human figure, there should be no question of excluding the shot, provided the theme is handled with delicacy and feeling, aiming at aesthetic expression and avoiding all suggestion of prurience or lasciviousness,” the report said. It added: “We like to salve our needlessly guilty conscience by ascribing a religious significance to these sculptures, but few people are deceived by this mock spiritual argument. The plain fact of the matter is that in those days it was not considered offensive or objectionable to talk, write, paint or chisel images representing sex, sexual relations and even sexual perversities.”

In 1969, Abbas challenged film censorship itself as being violative of the fundamental right to freedom of speech and expression. This was rejected. He urged “that there must be a reasonable time-limit fixed for the decision of the authorities censoring the film, and that appeal should like [sic] to a court or to an independent tribunal and not the Central government. The solicitor-general conceded (these two) and stated that government would set on foot legislation to effectuate them at the earliest possible opportunity”. On the faith of this “assurance”, the court did not strike down the law as being void. Its judgment was delivered on September 24, 1970. A tribunal was set up only in 1983.

It comprises a chairman and not more than four other members, appointed by the Central government. The chairman must be either a retired judge of a high court or a person qualified to be a high court judge — a party hack of 10 years’ practice as a lawyer qualifies. Everyone, the chairman, members of the advisory panel, and even the judge who presides over what is supposed to be a judicial “tribunal” holds office “during the pleasure of the Central government”. The government wields “revisional powers” not only over the Board, but also over the tribunal. Have you ever heard of the executive sitting in appeal over a judicial body? This fraud on the Supreme Court must be set right before the court intervenes.

To ban a book, the state government must publicly state “the grounds of its opinion” as to why it violates the law. A three-member bench of the high court judges the validity of the order. Does a film deserve less protection?

The writer is a constitutional expert and commentator

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