INTRODUCTION
The tension between censorship and the fundamental right to free expression weaves a complex narrative in the diverse tapestry of India's socio-cultural landscape, reflecting the delicate balance the nation strives to maintain. The conflict between censorship and free expression in India is rooted in constitutional principles and manifested through a wide range of laws, and it underpins a discourse that resonates across various spheres of society.
As we navigate the maze of sedition laws, media controls, and the ever-expanding realm of the internet, issues about where the lines are drawn and how they are defined arise. The latest Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, complicate the scene even further, adding layers to the continuing debate over free expression in the digital era.
This article dives into the complexities of the dispute, exploring the historical roots of censorship in India as well as its evolution through legal changes. The legislative framework sets the setting for a nuanced assessment of the delicate tango between restriction and liberty, from the censorship of cinematic expressions under the Cinematograph Act to the regulation of digital media under the Information Technology Act.
MAIN BLOG
Article 19(1)(a) of the Constitution of India guarantees this basic right to free speech and expression. As per the International Covenant on Civil and Political Rights (ICCPR), the right to free speech is recognized under the international human rights law, while Article 19 of the Universal Declaration of Human Rights (UDHR) recognizes freedom of expression as a human right. As free expression is not an unqualified right, hence certain limits are in place upon this right under Article 19(2). However, the only way to limit freedom of speech is through legislation. The right to disseminate material, publish it, and market the same also falls under the ambit of this freedom.
Freedom of expression under indian constitution
Heart of this discussion lies in Article 19(1)(a) of the Indian Constitution, which guarantees the right to free speech and expression—a cornerstone of democracy—is at the center of this debate. According to Article 19(1)(a): All citizens shall have the right to freedom of speech and expression. The very fabric of this right, however, is intricately linked with Article 19(2), which allows for reasonable restrictions in the interests of sovereignty, integrity, public order, and other things. The dispute evolves inside this constitutional framework, impacted by legal complexities, society norms, and new technologies.
Commercial and creative speech are not particularly protected under Indian law. However, Indian law has substantially grown and improved, and the Supreme Court has ruled that 'commercial speech' cannot be denied the protection of Article 19(1)(a). The Court found that the component of 'commercial speech' is well protected under the Constitutionally guaranteed right to free speech. All Indian people have the right to access, consume, and attend commercial speech. Artistic expressions, such as the right to paint, mime, dance, compose, and write poetry and literary works, fall under the purview of free speech and expression.
In Mahesh Bhatt v. Union of India & Anr.18 held that free speech is one of the foundations of the Indian Constitution and that it upholds it. The right to free speech and expression is a crucial component of a democratic framework. In order to maintain a functioning democracy, citizens must be informed and educated. Any incursions against free speech, as well as opposing and divergent views of expression, as well as any laws enacted in the manner of putting restrictions, will lead to curbing on free speech.
DECIPHERING DILEMMAS: THE COMPLEX WORLD OF CENSORSHIP
Censorship is the antithesis of freedom of expression, expression, and information1. It is the suppression of speech or information that governments, media outlets, or other people of authority in a state deem to be harmful, undesirable, sensitive, politically wrong, or inconvenient. However, it is extremely difficult to trace censoring to a single term. Censorship's characteristics are not reducible to a limited and established collection of institutions and institutional actions, but rather emerge from a plethora of continually altering discourses, practices, and apparatuses.
Primarily (but not necessarily) censorship may either be legal or extra legal. Legal censorship is imposed through means strictly authorized by law. It comprises both precensorship (pre-dissemination restraints) and subsequent censorship (post-dissemination sanctions), while extra-legal censorship refers to the suppression of information through means not strictly authorized by law.
Some of the driving rationales behind the concept of censorship around the world are:
- Interests of national security
- Religious peace keeping
- To control obscenity
- Hate speech
THE CENTRAL BOARD OF FILM CERTIFICATION (CBFC)
The Central Board of Film Certification is a governmental agency in India that governs the public display of films. The Ministry of Information and Broadcasting established it in compliance with Section 3(1) of the Indian Cinematographer Act of 1952. Films in India may only be shown publicly after being certified by the CBFC. For the purpose of film certification, the CBFC has a two-tier jury system, which includes the Examining Committee and the Review Committee. It also has an appeals panel called the Film Certification Appellate panel.
The Central Board of Film Certification (CBFC) assigns films to one of four categories:
Section 5A of the Cinematograph Act, 1952 deals with the certification of films which states as follows:
5A. Certification of films.—
[(1) If, after examining a film or having it examined in the prescribed manner, the Board considers that—
(a) the film is suitable for unrestricted public exhibition, or, as the case may be, for unrestricted public exhibition with an endorsement of the nature mentioned in the proviso to clause (i) of sub-section (1) of section 4, it shall grant to the person applying for a certificate in respect of the film a “U” certificate or, as the case may be, a “UA” certificate; or
(b) the film is not suitable for unrestricted public exhibition, but is suitable for public exhibition restricted to adults or, as the case may be, is suitable for public exhibition restricted to members of any profession or any class of persons, it shall grant to the person applying for a certificate in respect of the film an “A” certificate or, as the case may be, a “S” certificate,
and cause the film to be so marked in the prescribed manner:
Provided that the applicant for the certificate, any distributor or exhibitor or any other person to whom the rights in the film have passed shall not be liable for punishment under any law relating to obscenity in respect of any matter contained in the film for which certificate has been granted under clause (a) or clause (b).]
This body certifies films in accordance with § 5(B) of the Cinematograph Act13, which states 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”. It is important to note that the Cinematograph Act, 1952 only provides regulation of films by certification or noncertification and nowhere does it have an explicit mention of the power of the Censor Board censorship of films. The CBFC derives the power to censor films from Rule 26 of The Cinematograph Rules of 1983, which provides that the regional officer can issue a certificate upon the satisfaction of the condition that a specified portion/portions be removed from the film and that the portion/portions objected to have been excised from the negative of the film and from all copies thereof14.
CONCLUSION
As film censorship hampers artistic freedom and interferes with the creative process of film making, there must exist structures and systems that only provide for film regulation and certification and not censorship and such systems and structures must, while regulating content of films, also hold the ideals of freedom of artistic expression to its highest standard.