Introduction:
Cinema is a powerful medium that holds significant cultural, economic and artistic importance. It allows people to express creativity and convey complex ideas. However, cinema has been made subject to censorship in order to protect the interests of society.

In India, censorship of films is governed by the Cinematograph Act, 1952 (“Act”). Section 5B of the Act provides that a film shall not be certified if the CBFC is of the opinion that it is against the sovereign interests of the country, public order, decency or morality etc. It is bound by the guidelines framed by the Central Government in this regard.

In K.A. Abbas v. Union of India¹, the Supreme Court observed that Section 5B of the Act essentially mirrors the original wording of Article 19(2) of the Constitution as it stood prior to its first amendment. The first amendment to the Constitution, introduced the phrase ‘reasonable restrictions’ and made the rights under Article 19(1) justiciable. Therefore it was held that even though Section 5B does not expressly mention ‘reasonable restrictions’, it does not mean that the CBFC can exercise its power in an arbitrary manner. It was further held that film censorship is aimed at safeguarding public order, morality, decency, etc. and is therefore justified under Article 19(2) of the Constitution.

Legal Framework:
The Central Board of Film Certification (“CBFC”) was established under the Act. The CBFC is responsible for certifying films for public exhibition based on their suitability for different age groups and specific audiences.

Under Section 4(2) of the Act, the CBFC after examining a film can certify it in the following manner:

1. Unrestricted Public Exhibition for viewers of all ages (U)
2. Unrestricted Public Exhibition with parental/adult supervision for children (UA)
3. Restricted exhibition for adults only (A)
4. Exhibition restricted to a particular profession or class of persons (S)

The CBFC can also direct the Applicant (filmmaker, producer, etc.) to make such excisions/modifications as it deems fit for the purpose of certification in a particular criterion.

Section 5E of the Act provides that the Central Government may, after hearing the applicant (filmmaker/producer etc.), suspend or revoke the certification of film in two situations:- (i) if the film is being exhibited in a form other than the one in which it was certified; or (ii) the film or any part thereof is in contravention of the provisions of the Act or the rules framed thereunder.

Under Section 6(2)(a) of the Act, the Central Government can direct that any film which has been granted a certificate by the CBFC shall be deemed to be uncertified in the whole or any part of India. Section 6(2)(b) provides that the Central Government can change the certification of a film to ‘A’. Section 6(2)(c) of the Act allows the Central Government to suspend the public exhibition of a certified film however only for a maximum of 2 months. During the period when the film is suspended, it shall be deemed to be uncertified. In case of an order passed under Section 6(2)(c), there is no requirement to hear the filmmakers. Such power has been granted so that the Central Government can take appropriate action to maintain public order.

Judicial Interpretation:
In India, the certification and public exhibition of films is usually challenged on the ground of hurting public sentiments and the apprehension that the release may lead to disrupting public order. However, the Supreme Court has taken a categorical stand that once a film has been certified by the CBFC in accordance with the Act, its exhibition cannot be stopped merely on the basis of an apprehension of causing public disorder.

In Prakash Jha Productions v. Union of India², writ petition had been filed for quashing and setting aside the suspension of screening of the movie ‘Aarakshan’ in the State of Uttar Pradesh. The State Government had suspended the screenings in exercise of powers under Section 6 of the U.P. Cinema (Regulation) Act, 1955. The State Government had contended that a ‘High Level Committee’ constituted by it, had viewed the film and it was of the opinion that if the film is released without certain changes, there would be a law and order crisis in the state. The filmmaker contended that the said action by the State Government was unsustainable as it amounts to pre-censorship which can exercised by the CBFC only. The Supreme Court held that since the CBFC had already certified the film for screening across the country, the State Government could not have suspended the public exhibition of the film on mere apprehension of disturbing public order.

In Adarsh Coop. Housing Society Ltd. v. Union of India³, a writ petition had been filed before the Supreme Court for prohibiting the release of the film ‘Aiyaary’ after it was certified by the CBFC. The grievance of the Petitioner was that the film contains references to land/building/membership of the Petitioner Society and projects the Petitioner in a bad light which is likely to cause grave prejudice to the members of the Petitioner Society in certain litigation which was going on at the time. It was contended that the film would hamper their right to a free and fair trial.

The Court held that the doctrine of sub-judice may not be elevated to such an extent that some kind of reference or allusion to a member of a society would warrant restricting freedom of speech and expression. The Court also observed that grant of certificate by the CBFC after consulting with authorities of the army should dispel any apprehension of the Petitioner. Therefore the writ petition was dismissed.

Therefore, the law is settled that once a film has received certification, there is an assumption that the CBFC has conducted proper scrutiny of the film in accordance with Section 5B and the guidelines framed thereunder and then granted a certificate. Therefore public exhibition cannot be stopped. Only the Central Government has power to suspend the public exhibition of a certified film in accordance with Section 6 of the Act.

Public Order:
The release of several films has been challenged on the ground of hurting sentiments and/or disturbing public order. Recently in the case of Kamal Haasan’s latest film ‘Thug Life’, the Karnataka Film Chamber of Commerce had announced that it has decided to ban the film in Karnataka over a comment made by Kamal Haasan.

The producers of the film had filed a writ petition before the High Court of Karnataka⁴ seeking police protection for the film’s release, however the Court refused to entertain it, instead the High Court asked Mr. Haasan to apologize, which he refused, and the film was not released in Karnataka.

A PIL was also filed before the Supreme Court⁵ by a resident of Bengaluru against the extra-judicial ban imposed on the release of the film describing the same as a flagrant failure of law and order in the State of Karnataka. The Supreme Court while hearing the matter, transferred the writ petition pending before the Karnataka High Court to itself and directed the State Government to file a response. The State Government in its affidavit gave an undertaking that it would protect the film’s release. In view of the statement given by the State Government, the Karnataka Chamber of Film Commerce also stated that it would not come in the way of screening the film. Therefore, both matters were disposed of.

The film ‘Udaipur Files’ is about the murder of a tailor in Rajasthan. The film is advertised as being based on true events. A PIL was filed by Jamiat Ulama-e-Hind before the High Court of Delhi⁶, challenging the certification of the film on the ground that it seeks to portray an entire community in a prejudicial manner, and that it could potentially cause communal tensions and disrupt public order. The CBFC informed the Court that it had already directed several cuts in order to dispel any concerns about communal tensions. It was contended that the film is about one particular case and that the Petitioner was trying to attack the larger theme of the film, which is protected under Article 19(1)(a). The High Court observed that Section 6 grants revisionary powers to the Central Government. Any person being aggrieved by the certification of a film can approach the Central Government for revision of the order granting certificate to a film passed by the CBFC. The High Court has disposed of the Petition and directed the Petitioner to approach the Central Government under Section 6 of the Act. The Court has granted an interim stay on the release of the film until the Central Government decides Petitioner’s application for interim relief in proceedings initiated under Section 6 of the Act. The Central Government was directed to decide the matter within a week.

Non-Certification as a Weapon:
Under Section 5C of the Act, an Applicant can file an appeal against non-certification or wrongful certification or any proposed excision/modification by the CBFC, before the concerned High Court. Considering the pendency of cases in the country and heavy burden on the judiciary, there is bound to be considerable delay in adjudication of the appeal which would lead to huge financial losses to the filmmakers, therefore, they are also reluctant in challenging the decision of the CBFC. It seems that non-certification is now being used as a weapon against filmmakers to make them adhere to unreasonable objections raised by the CBFC. For example:

1. Janaki v. State of Kerala: The CBFC has raised an objection to the use of the word ‘Janaki’ in the title of the film and using it as the name of the main character of the film. According to the CBFC, in the film, the lead character who is named after Goddess Sita (Janaki) is raped, and she is also cross-examined aggressively by a person belonging to another religion. Therefore, the CBFC opined that the treatment of a character having Goddess Sita's name shown in the film has the potential to create public disorder. The filmmakers have approached the High Court of Kerala⁷ challenging the objections raised. It was contended that these objections are arbitrary, unreasonable and unconstitutional as they are violative of Articles 14 & 19(1)(a) of the Constitution. The CBFC has raised objections based on a mere apprehension of disturbing public order and hurting sentiments. Finally to put an end to the matter, the CBFC has asked the filmmakers to change the name of the movie to ‘JSK - Janaki V. v/s State of Kerala’. The matter is currently sub-judice, however, the filmmakers have agreed to the proposal of the CBFC before the High Court.
    
2. Sitaare Zameen Par⁸: The CBFC asked the film makers to include a quote by the Prime Minister as part of the film’s opening disclaimer. Furthermore, the word ‘kamal’ (lotus) was removed for the reason that it is the ruling party’s symbol. The filmmakers have not challenged these objections even though these objections have no nexus with Section 5B of the Act.

The objections raised by the CBFC in these cases do not have any nexus with Section 5B. Furthermore, the power of directing excision/modifications is restricted to making the film suitable for audiences of a particular age group only. It is not understood how the movie ‘Sitaare Zameen Par’ could not be granted certification without adding a quote by the Prime Minister. It is also not understood how using a name as common as ‘Janaki’ in the title of a movie about a rape case is detrimental to public order and hurts religious sentiments and merely changing it to ‘Janaki V.’ remedies the issue.

Conclusion:
Although censorship has been held to be constitutional by the Supreme Court, it does not mean that the CBFC has unlimited power to raise any objection it deems fit. Unfortunately, the filmmakers also end up adhering to these demands to prevent huge financial losses that would be caused due to delay or non-release of the film.

The process of film certification in India aims to balance freedom of speech and expression under Article 19 of the Constitution and the reasonable restrictions imposed thereon. However, the CBFC has been raising objections against films which are not reasonable and forcing filmmakers to make modifications. Ideally, the CBFC should restrict itself to certifying films on the basis of the criteria laid down in Section 4 of the Act.

By - C. George Thomas and Ansh Mittal