Udta Punjab – legal position on censorship

Udta Punjab – legal position on censorship

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Film censorship is a controversial issue. Every now and then, there are competing claims on the right to freedom of speech and expression, and the interest of the society in ensuring that medium of film remains responsible and sensitive to the values and standards of society. The latest in this series is “Udta Punjab” movie, that delves into how the youth in Punjab have succumbed to drugs, which is slated for release on 17 June, 2016. This movie is co-produced by Phantom Films (Anurag Kashyap) and Balaji Motion Pictures (Shobha Kapoor and Ekta Kapoor) and it features Shahid Kapoor, Kareena Kapoor, Alia Bhatt and Diljit Dosanjh in the lead roles. As reported in the media, makers of the film are said to have been asked by the Revising Committee of the Central Board of Film Certification (Censor Board) to remove all references to Punjab and to make 89 cuts. The movie is reported to have issues over profanities and scenes of drug use. A three-minute official trailer of the movie itself shows vulgar and abusive language that is commonly used in day-to-day private conversations in north India, particularly in Punjab.

Udta Punjab movieReportedly, the Censor Board has not yet formally refused certification to the movie but has rather suggested some changes in the movie. The co-producer Anurag Kashyap has decided to approach the Film Certification Appellate Tribunal, while lashing out at the Censor Board. It is also reported in media that there are political motives for not clearing the movie due to the impending Assembly elections in Punjab. Reportedly, BJP and Akali Dal are opposing this movie. On the other hand, it is also reported that Aam Aadmi Party (AAP) has unofficially funded the movie to show Punjab Government and Punjab police in bad light so as to gain political mileage in the impending Punjab elections.

Let us examine the legal issues. Article 19(1) of the Constitution guarantees the fundamental right to freedom of speech and expression. However, at the same time, clause (2) of Article 19 also allows reasonable restrictions on the exercise of the above right in the interests 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 to an offence.

The Parliament enacted the Cinematograph Act, 1952, to make provisions, inter alia, for the certification of cinematograph films for exhibition. Section 5-B of this Act deals with the principles for guidance in certifying films. It lays down that a film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests 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. Thus, the reasonable restrictions on the right to freedom of speech and expression under Article 19 of the Constitution have been reproduced here as well. This section thus clearly shows that it is possible even to refuse certification of a film for exhibition if it violates any of the above principles. In addition, Section 5-A(2) clearly lays down that “…an order refusing to grant a certificate in respect of any film shall be published in the Gazette of India”, which means that in suitable circumstances, the Censor Board has the power to refuse certification to a film. Thus, the law permits the Censor Board to even refuse permission to a movie in some exceptional circumstances and till date this power has not been struck down as being unconstitutional (under Article 19 or otherwise); of course, it is a different issue whether this extreme power should be used by the Board in any case.

Further, Section 5-B also lays down that the Central Government may issue directions setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.

In exercise of the powers under above Section 5-B, the Central Government (Ministry of Information and Broadcasting), by its Notification dated 6 December 1991, has laid down detailed principles for guiding the Censor Board in the matter of issuing film certification. Some relevant principles (for the purposes of the present issue), directing the Censor Board to ensure certain aspects, are as under:

  • scenes tending to encourage, justify or glamorise drug addiction are not shown;
  • human sensibilities are not offended by vulgarity, obscenity or depravity;
  • such dual meaning words as obviously cater to baser instincts are not allowed;
  • visuals or words involving defamation of an individual or a body of individuals, or contempt of court are not presented;

Importantly, another principle laid down in the above Notification is that – “(t)he Board shall scrutinize the titles of the films carefully and ensure that they are not provocative, vulgar, offensive or violative of any of the above-mentioned guidelines”. This is important, since there are media reports showing that the Censor Board also wants a change in name of the movie, seeking deletion of a reference to Punjab state in the title of the movie. Thus, this shows that at least a legal power exists with the Censor Board to seek change in the title of the movie.

In the above, I have cited mainly those principles laid down in the said Notification that are directly relevant to the present issue. In addition, there are several other principles laid down in the said Notification such as ensuring that (i) the sovereignty and integrity of India is not called in question, (ii) the security of the State is not jeopardized or endangered, (iii) friendly relations with foreign States are not strained, (iv) public order is not endangered, (v) excessive violence or excessive sexual violence is not shown, etc.

Therefore, the guidelines are very strict. The Censor Board is required to adhere to these guidelines while issuing certification to a movie. For example, abusive words with dual meanings, vulgarity, obscenity, etc., are not to be permitted in movies.

On the other hand, with the advancements in technology, several changes have come into existence in real life. While films need certification for public exhibition, TV shows do not need such prior censorship. YouTube and other Internet websites do not need such prior certification. One routinely comes across much more abusive content on social media such as Facebook and Twitter. AIB Roast / Knockout allegedly contained much more abusive content. Technology has made it possible to bring the abusive or vulgar contents from private circles to the mainstream. Movies such as Udta Punjab try to bring such abusive comments in the films which remains the only form of media that has been subjected to prior censorship. So, what is the option?

First, either you change or repeal the guidelines or the laws relating to the censorship of films. This is to bring these laws in line with the laws governing other forms of visual contents. Once certification of films is done away with (if at all it is done away with), a person watching a movie would know that now you are not entering a “controlled” stream but rather you are entering an “uncontrolled” ocean; so, better do it at your own risk and take care of your own sensitivities before entering a cinema hall or before downloading a film from the Internet. At the same time, if such a film violates the laws of the land relating to vulgarity or public order or similar other restrictions (which are also applicable to Internet and TV), the authorities may still be free to take (subsequent) action against those making / distributing such films. This scheme presently applies to visual contents available online. So, why should there be discrimination against films?

Second, if the certification rules have to continue to be in existence (in the present form) for the films, then these rules should be effectively applied. Otherwise, there is no point in having the rules. So, either you don’t have the rules or guidelines, or if you have the rules then you must apply them in letter and spirit. Otherwise, you make a joke of yourself.

Of course, there is the issue of equal application of the guidelines in a non-discriminatory manner. There is also the issue of a judicious application of the guidelines. Don’t use a sword where a needle is needed. For example, under the Cinematograph Act, there are provisions for issuing 4 different types of certificates to films:

  • “U” certificate if the film is suitable for unrestricted public exhibition;
  • “UA” certificate if the film is suitable for unrestricted public exhibition with an endorsement that it is necessary to caution that the question as to whether any child below the age of twelve years may be allowed to see such a film should be considered by the parents or guardian of such child;
  • “A” certificate if the film is suitable for public exhibition restricted to adults;
  • “S” certificate if the film is suitable for public exhibition restricted to members of any profession or any class of persons, having regard to the nature, content and theme of the film.

For example, if it is considered that a film violates certain guidelines that are so important that the film cannot be allowed at any cost (such as security of the nation or if it may lead to serious public order problems), it may perhaps be refused certification. Article 19 of the Constitution may permit such reasonable restrictions in some extreme cases. The said Act also permits refusal of certification to a movie in certain situations.

However, if it is considered that a film violates certain guidelines but yet the same can be taken care of by issuing a limited certification such as “UA” or “A” or “S”, then instead of refusing permission completely, such limited certification needs to be resorted to. For example, in the present case of “Udta Punjab” movie, it may perhaps be possible to allow the movie with “A” certification instead of completely banning it. Media reports show that its co-producer Anurag Kashyap is agreeable to “A” certification. After all, as mentioned above, similar type of content (or rather much worse type of content) may already be available online without any certification. So, why not leave it to the discretion of the people whether to watch the movie or not with the sufficient cautionary note as is attached with the “A” certification? In any case, even if you ban such movie, it may still be launched in other countries and then it may become available online through unofficial channels; so, such ban may not be practicable. On the other hand, you are providing free publicity to the movie by talking about banning the movie.

So, if the producers of the movie are not amenable to make the “cuts” suggested, issue an appropriate restrictive certification such as “A”. But, there may not be a need to ban such movie since it is not going to threaten the national security or lead to serious public order problems or the like situations that can be handled only by banning the movie.

The questions about the political motives behind the movie should not bother the Censor Board. Every day, on TV, news media and Internet, we have a large number of political debates with all sorts of allegations being hurled at one-another. We have a thriving and vibrant democracy. A movie with a political skit is not going to do any harm to the democracy. In fact, if the movie depicts the true picture of the drug situation in Punjab then the story may already be known to the people and a movie on the same issue will not make much of a difference. In fact, in this situation, the existing BJP – Akali Dal Government needs to answer as to what did it do to solve the drug problem in the 10 years of its rule. On the other hand, if the movie misrepresents the situation on ground and if it is felt that some political party has funded the movie, it may boomerang on the sponsors of the movie; and, in such a case, the people will discard the movie as being a fiction. In any case, it is none of the business of the Censor Board to bother about politics involved in a movie. When other types of media can freely discuss politics day in and day out, why should discussion of politics be banned only in a movie?

So, why should a movie of this nature be banned if it can be allowed with an appropriate restrictive certification such as “A”?

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