Now CBFC bans film on lesbians. Why censorship picks on cinema

If wishes were horses, then we would be given a little more time to celebrate the sublime before we are forced to once again condemn the ludicrous. But that is clearly not to be, and less that five days after the Supreme Court’s verdict in the Shreya Singhal case striking own Section 66A of the IT Act, we are gifted the latest act of farcical banning by the central board of film certification (CBFC). Their comic gesture would almost be touching (who can deny the sad charms of clowns) were it not so diabolic. Its latest salvo against a film, ironically titled Unfreedom, seeks to ban it on the grounds that it will ignite "unnatural passion" (sic). The film about a girl who escapes a forced marriage to be with her lesbian partner allegedly irked the board.

If the basis of striking down Section 66A of the IT Act was based on “vagueness, over breadth and its chilling effects”, there is a clear case to be made for challenging the certification guidelines issues under the Cinematograph Act and Rules, and the urgent need of the hour is a Shreya Singhal like action to update the Cinematograph Act. If the terms “grossly offensive”, “menacing character” and “annoyance” were held to be vague in the Singhal judegment, consider the following from the film certification guidelines:

(i) Anti-social activities such as violence are not glorified or justified.

(ii) The modus operandi of criminals, other visuals or words like to incite the commission of any offence are not depicted.

(iv) Pointless or avoidable scenes of violence, cruelty and horror, scenes of violence primarily intended to provide entertainment and such scenes as may have the effect, or desensitising or dehumanising people are not shown.

(v) Scenes which have the effect of justifying or glorifying drinking are not shown.

(vi) Scenes tending to encourage, justify or glamorise drug addition are not shown.

(vii) Human sensibilities are not offended by vulgarity, obscenity or depravity.

(viii) Such dual meaning words as obviously cater to baser instincts are not allowed.

It is high time that these guidelines join Section 66A in the dustbins of vague and overreaching provisions.

But for now lets return to the basics: In what way is film censorship different from other forms, say a literary work? Unlike other forms of expression such as literature, cinema is distinguished by the fact that it remains one of the few instances (along with dramatic performances) which is still subject to pre-censorship. If you intend to write and publish a book, you do not need require any permission or authorization from the state. But in the case of a film, the cinematograph explicitly disallows the public exhibition of any film which does not have a censor certificate. Thus in the case of a book, even though subsequent action may be taken against the book after publication,  in the case of cinema, the grant of a censor certificate is a precondition to its release and exhibition. What is the justification of this differential treatment of cinema?

In 1965 filmmaker and writer KA Abbas filed a constitutional challenge against the pre-censorship of cinema arguing that this was in violation of freedom of speech and expression. Justice Hidayatullah in the Abbas decision (KA Abbas versus Union of India, 1970), which still stands as the prevailing law on the point stated:

“It has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism), and its coordination of the visual and aural senses. The art of the cameraman, with trick photography, VistaVision and three-dimensional representation thrown in, has made the cinema picture more true to life than even the theatre or indeed any other form of representative art. The motion picture is able to stir up emotions more deeply than any other product of art. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to emulate or imitate what they have seen.”

The judgment is based on what can be termed as the "medium specificity" argument and this single paragraph has been cited ad nauseam in all subsequent decisions on film censorship. This reasoning of the court was incidentally cited in the Shreya Singhal case as well to justify why a differential treatment of the internet does not violate the equality guarantee in Article 14.

Since much of film censorship has continued on the basis of the presumption that cinema has a different impact on the audience, it is important to revisit some of the underlying presumptions at play in the paragraph a little closely, and ask whether they still hold true in the contemporary era where we are saturated with media images all the time.

Implicit in the Abbas judgment is the suggestion that the problem of cinema arises not so much from its inability to represent reality, as much as the fact that it is able to do it too effectively and that it has the ability to impact differential classes of people differently, especially children who are prone to believe whatever is happening as a result of their inability to distinguish between the illusion on the screen and reality. A lot of the cinephobia that informs the law and judicial responses stems from an outdated idea of media impact which assumed that people had to be protected from the influence of media because of their incapacity to distinguish between reality and illusion.

In the Indian context this attitude can be traced to a paternal and patronising attitude of the colonial authorities who believed that native audiences were specially vulnerable to film on account of their relative immaturity and hence there was a need for greater censorship of cinema. The Indian Cinematograph Committee of 1928-29 conducted interviews across the length and breadth of colonial India to confirm their suspicion but were a little surprised by the results they encountered.

I will refer to just one interview with Lala Lajpat Rai — an interview from almost a hundred years ago worth "revisiting" as we think of the Cinematograph Act of the 21st century.

“Q: Do you think that the cinema has any pernicious effects on the youth of our country?

A: No more than it has any effect in other countries. I have never heard of any particular complaint.

Q: One European gentleman who is in charge of the college youths in this province told us that there is a danger of the youths of this country being demoralised in their impressionable age on the undue emphasis that is laid on sexual films?

A: I do not agree with that view at all, and I will give you my reasons too. First of all, the influence of the cinema is no more and no greater than the influence of the novel or the drama. The college youths read a lot of novels, both American and European, and it is from their subjects of these novels, that most films are produced and I have no apprehension that the films are likely to be more harmful than the reading of novels and dramas. The fact is that the western civilization is spreading across the world. It has its good effects and its bad effects, and we cannot have the one without the other. I am sufficiently confident that our people will be able to resist the evil influences of the cinema on account of the general atmosphere of sexual morality that prevails in this country. Of course there will be a few individual people who may go astray here and there, but I don’t want to make that the basis of action.

Q: The point which is emphasised is that in some scenes nudity is prominent, and some of the films contain what they call close up scenes and, as my friend Col. Crawford puts it, cabaret scenes, under-world scenes. I mean that such scenes are made to appear so largely that they have a pernicious influence on our people. It is also said that such scenes tend to lower the esteem of the Western womanhood in the estimation of the people here.

A: I don’t want the youth of this country to be brought up in a nursery. They should know all these things, because they will be better able resist those things when they go out. They should see all those things here and they will be able to understand all the points of modern life.”

Lajpat Rai confidently asserts a vision of the future citizens of this country which does not condemn them into a state of perpetual infancy. He also refuses the theory of the specificity of cinema as an object of censorship and claims that the influence of cinema is no more and no less than that of literature. While the argument of the impact of cinema may even have had some partial truth at its inception, we have now lived with the medium for over a hundred years and we live in what may be termed a "post mediatised" world where our senses are saturated with various forms of media and images from the television to billboards, and the internet and mobile phones.

The courts in India, while responding to cases on film censorship, have often found themselves constrained by the archaic law and the vague guidelines that exist for film certification. Despite the limitations the courts have attempted to interpret the Cinematograph Act more liberally, to bring it up to date with social and technological changes, and it may be worthwhile for the government to take heed of some of these interpretations when they revisit the Cinematograph Act.

In the KA Abbas decision itself Justice Hidayatullah stated that the mere existence of themes which were listed as objectionable did not per se make them fall foul of the law and what was important was whether their “artistic merit or their social value overweighed their offending character”. Urging the officers of the Central Board of Film Censors (which was renamed the Central Board of Film Certification in 1983) to exercise caution in undertaking their task he said that: “Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.

The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good”.

Similarly in the Tamas case (Ramesh versus Union of India, 1988) the Supreme Court affirmed Justice Vivian Bose’s observation that “the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view” (Bhagwati Charan Shukla versus Provincial Government, 1947).

Will someone please nudge the members of the CBFC and urge them to smell, if not taste the coffee.