Written by Surbhi Karwa and Radhika Roy
Marking the return of Bollywood’s Baadshaah, Shah Rukh Khan, to the silver screen after four long years, the upcoming film Pathaan is being released on January 25. However, the controversies surrounding the film and the modifications suggested by the Central Board of Film Certification (CBFC) present two larger patterns in our free speech history that warrant attention — first, the chilling effect of threats of violence by extra-constitutional bodies; and second, overwhelming state dominance in film certification laws.
The right of filmmakers to make films is part of the fundamental right to free speech under Article 19(1)(a) of the Indian Constitution. Multiple court rulings have established that films, like any other medium (newspapers, magazines, etc.), are part of a citizen’s right to expression. Although, unlike other mediums, films are subject to pre-certification, it does not mean that films are open to being restricted more broadly than other mediums. Courts have in fact issued some positive guidelines allowing the portrayal of social evils, historical injustices, and context-based nudity in films.
Unfortunately, since the release of the very first song of the film, ‘Besharam rang’, these guidelines and rulings have gone for a toss. Persons associated with the film have been bullied and threats have been advanced to “burn down” cinema halls running the film. Death threats have been issued to Shah Rukh and effigies of actors in the film have been burnt. Threats were issued even to Aamir Khan and Salman Khan, both un-associated with the film.
Complaints have been filed against the makers of the film for “hurting religious sentiments”, a criminal provision well documented for vagueness, bordering on unconstitutionality. And all of this has happened before the CBFC’s final certification, which is the sole body responsible for determining suitable certification of films. This undermines the role of the CBFC and allows extra-constitutional bodies to dictate the exhibition of films: Something that courts have categorically found to be illegal.
The Supreme Court in KM Shankarappa v Union of India (2000) held that once a film has been certified by CBFC (“expert body”), then the government has a duty to ensure its release. The court held that appropriate action should be taken against those who use “unlawful means” to restrict the exhibition of films. It was further held that it was not open to the government to use the “excuse” of “law and order” to interfere with the decisions of the CBFC and its Appellate Tribunal.
However, in this case, the authority of the CBFC has been held ransom to the increasingly “vulnerable sensibilities” of the public at large. In clear violation of his constitutional duty, even the Home Minister of one state has warned that the film will not be allowed to be released in the state if allegedly “objectionable” scenes were not replaced. All these instances dictate how free speech is being curtailed at the behest of entities who are not vested with the power to actuate restrictions in the first place.
Pathaan also presents us with an opportunity to re-evaluate the laws on film certification in India. The primary role of the CBFC is to “regulate the public exhibition of films”, that is, any film screened for public viewing must adhere to rules under the Cinematograph Act, 1952. The Act provides an overall structure for the working of the Board and different kinds of certificates can be issued like (U), (U/A), (A), etc. Notably, the requirement of pre-release certification is not meant to be a form of “censorship”, but merely a “certification” of the film for a suitable audience. It is ultimately, the Central Board of Film “Certification”, and not the “Central Board of Censorship”.
However, Indian film certification laws have, by design, functioned in an anti-free speech fashion. As per Sections 3 and 5, members of the Board at all levels are appointed by the central government, without any involvement of the leader of the Opposition or any other body, and their salaries are determined by the central government. Members of the Board enjoy their term until the “pleasure of the government” as per the Cinematograph (Certification) Rules, 1983.As per legal scholar AG Noorani, this, along with vague guidelines under Section 5B(2), makes the certification process subject to overwhelming state dominance. Under this section, grounds such as “anti-social activities”, endangering “public order”, promotion of “anti-national attitude”, etc. can easily be used to justify censorship as per the subjective interpretation of the ruling government.
Further, the central government has also attempted to revive its “revisional powers” through the Cinematograph Amendment Bill, 2021, which the Supreme Court had previously found to be unconstitutional as it allowed the executive to sit over decisions of a quasi-judicial body. Under Section 6(1), the central government can, of its own motion, call for the record of any film at any stage of certification in the CBFC before itself. This essentially allows the central government to set the entire process of CBFC aside if necessary.
Seemingly innocuous cuts to Pathaan, such as “Mrs Bharatmata” being replaced with “Hamari Bharatmata” and certain visuals of the song ‘Besharam rang’ being adjudged as explicit and sensuous, demonstrate that pre-certification has been remoulded into a form of censorship motivated by political and religious ideologies. It is time we identify the larger pattern of conservatism that is emerging by way of censorship in films and put an end to the further desecration of free speech.
(Karwa is a lawyer and a graduate of the University of Oxford. Roy is a Delhi-based lawyer)
