Padmavati syndrome: Freedom of speech and expression vs perceived hurt sentiments

Sanjay Leela Bhansali’s Padmavati is embroiled in controversy after members of the Rajput community and some political leaders raised objections about the depiction of queen Padmavati in the film and alleged distortion of history. Some states have already announced a ban on the movie. And, the film is not even released as it still awaits certification from the Censor Board! Consequently, the film is held up for release in India. Though the British Board of Film Certification has cleared the film for December 1 release in the UK, the producers of the film stated that it wouldn’t be screened pending clearance from the Central Board of Film certification (CBFC).

Meanwhile, the Supreme Court has agreed to hear next week a fresh plea seeking a direction to makers of Padmavati not to release it outside India on December 1.

Calls for a ban on movies, books or arts are not uncommon in India. Films have often been the target of public ire other than censorship carried out by the CBFC before certifying for public screening. Therefore, the call for banning Padmavati does not stand alone. Movies such as Bandit Queen (1994), Da Vinci Code (2006), Jodhaa Akbar (2008), Udta Punjab (2016) are few notable examples of many other films that got caught up in controversies in the past.

As recent as last week two films namely, ‘S Durga’ and ‘Nude’ were summarily dropped from the final list in the 48th International Film Festival of India (IFFI) in Goa after the Union Ministry of Information and Broadcasting had objected to their screening at the event.

Even the release of An Insignificant Man – a documentary on Delhi Chief Minister Arvind Kejriwal and a Marathi movie Dashkriya were challenged, albeit unsuccessfully- before the Supreme Court and the Bombay High Court respectively. The SC while dismissing the plea for a ban on the An Insignificant Man has held that “Freedom of Speech and Expression is sacrosanct and the said right should not be ordinarily interfered with.” On the Marathi movie, the Bombay High Court dismissed the plea, taking a cue from the Apex Court’s order.

These developments once again bring to the fore issues of pre-censorship by the Censor Board, calls for a ban on films based on the perceived hurt of sentiments of some groups on the one hand; and the resultant bearing such fallout might have on the freedom of cinematic expression on the other. Using the perceived hurt sentiments of some groups as a basis–movies have often been banned, judicial intervention for a stay on their release and certification sought, and film-makers and actors threatened and intimidated despite the movies having passed the Censor Board’s certification.

It is in the backdrop of these recent developments that the issue of freedom of cinematic expression vis-a-vis the statutory requirement of pre-censorship and the perceived notion of hurt sentiments of few disgruntled groups as a basis for seeking ban on movies by states have to be relooked and analysed through the lens of the legal framework in place and the constitutional guarantee of freedom of speech and expression under Article 19(1) (a).

Legally, all films meant for public exhibition in the theatres are required to be certified by the CBFC established under the Cinematograph Act 1952. The Act requires filmmakers to obtain clearances from the censor board before they could release or screen the movies and thereby laying down the concept of ‘pre-censorship’ (which means that before a film can be released for public viewing, it must be cleared by the censor board).

Notably, there are two issues. First, the pre-censorship requirement that films have to pass through by means of certification from the Censor Board as mandated by the Cinematograph Act 1952 and the guidelines therein suffer from vagueness in its scheme and application.

Since the guidelines lack clarity, they can be subjected to misuse and liberally interpreted to require cuts or censor parts of a movie on the whims of members of the censor board. This concept of pre-censorship that the censor board is empowered with has been the major bone of contention between film makers and free speech-expression proponents on one side and the need for pre-censorship as provided by the Cinematograph Act on the other.

Second, even after a film is certified by the Censor Board there can still be claim of hurt sentiments or distortion of history, arguments being used by groups to seek cancellation of certification or a ban on its screening along with the threat of protests and violence of which the ongoing Padmavati controversy is an example of. Such uproar and protests surrounding a movie often compel the government to readily give in to the perceived popular sentiments, albeit due to political considerations, against a movie because Section 13 of the Cinematograph Act empowers the Central government or the local authorities to suspend exhibition of films. This provision has been used as a tool to appease the disgruntled groups that seek to represent perceived popular sentiments against a movie. It is, therefore, not surprising at all that call for banning movies often came from political leaders or groups adhering certain political groups’ interests or the other. The ban on the movie Da Vinci Code by some states in 2006 despite being cleared for release by the Central Board of Film Certification (CBFC) of India is one such example.

In 1970, the constitutional validity of the Cinematograph Act and its guidelines was challenged in K. A. Abbas vs. the Union Of India. A 5-judge bench of the Supreme Court upheld the constitutional validity of the Act and 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 constitutionality of censorship was also upheld in S. Rangarajan v. P. Jagjivan Ram in 1989.

Since the decision in Abbas, the power of certification as a means of pre-censorship has been subjected to large-scale misuse, owing to the ambiguity in the guidelines and the way they should be exercised.

Consequently, the nature and degree of pre-censorship depended on who chaired the Censor Board and who was at the helm of affairs. The Board has routinely demanded cuts as a pre-condition for certification and there are cases where the Board’s action has been found to be arbitrary and overreaching. For instance, last year in the Udta Punjab case, the Court held that the CBFC does not have the power to censor films. It said that cuts suggested should be in consonance with Constitution and earlier Supreme Court orders. The Court further observed that the audience is mature enough to decide what it wants to watch.

And last week, while hearing a petition seeking a ban on the movie An Insignificant Man, the Honourable Supreme court made a very significant observation reflecting on the need to thread a cautious approach in order not to curtail on the freedom of expression when it said, “A film or a drama or a novel or a book is a creation of art. An artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not to be read by implication to crucify the rights of an expressive mind. The human history records that there are many authors who express their thoughts according to the choice of their words, phrases, expressions and also create characters who may look absolutely different than an ordinary man would conceive of. A thought-provoking film should never mean that it has to be didactic or in any way puritanical. It can be expressive and provoking the conscious or the sub-conscious thoughts of the viewer. If there has to be any limitation, that has to be as per the prescription in law”.

On the Padmavati movie, the Supreme Court on 10 November has refused to entertain a plea seeking a stay on its release, saying the “Central Board of Film Certification (CBFC) considers all aspects before granting certificate to any film.” The honourable court has also dismissed another petition seeking directions to the CBI for registration of FIR against the makers of the film for defaming a legendry historical figure.

Cinema has been a classic medium of expression of ideas, thoughts, stories or even opinions and cinemas do not necessarily and always are a representation of real-life incidents. The art of cinematography has been looked at from the same lens of freedom of speech and expression guaranteed by Article 19(1) (a) of the Constitution. Therefore, the right to make and release films is akin to an expression of artistic creativity.

Censorship of films on the whims and request of few tantamount to clamping down on this expression of cinematic creativity and curtail the artistic spaces that the freedom of expression as guaranteed under the constitution allows. Similarly, the authorities readily giving in to pressure or threat of violence from disgruntled groups poses a real threat to this freedom of speech and expression and that should be an actual cause for concern.

The paramount consideration should be whether a film has been approved by the Censor Board or not. Once approved by the Censor Board, a movie should be accorded the right to be released across the country. No states should be allowed to ban its release.

Certainly, people or groups who are aggrieved by a particular film have the right to protest, but such forms of protest should be legal and constitutional. Indulging in the politics of vandalism, threats, incitement to violence just because one does not buy an idea that a film depicts is unacceptable and amounts to illegal curtailment of the space for creative expression.

When all else fail – the country’s judiciary must intervene – like it did numerous times on many issues, to ensure that creativity and the right to artistic expression as a recognised form of right to freedom of expression is protected, especially in the wake of repeated attempts by fringe groups to curtail this constitutional right. What the Honourable Supreme Court observed last week while disposing of the petition seeking a ban on An Insignificant Man and what the Bombay High Court last year had held in the Udta Punjab case are worthy of a standing ovation.

The country had witnessed remarkable social change since the Abbas judgment more than 45 years ago. Our attitude towards cinema and the varied and contrasting ideas that films seek to depict need to be responsive to this social change. As was rightly observed in the Udta Punjab case, the audience is mature enough to decide what it wants to watch. And, that is how our attitude as a society towards cinema ought to be.

Dilip Chakma

Dilip Chakma

Dilip Chakma is a lawyer and alumni of the National Law School of India University (NLSIU).
Dilip Chakma
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