Author : Deshna Rupesh Desai, Student at Pravin Gandhi College of Law, Mumbai.
The Indian Constitution guarantees fundamental rights to the people of India. One of them is the right to free speech and expression. It is interpreted as the freedom to express individual’s opinion through words, printing, pictures or in any similar way. However, they are subjected to certain limitations which are mentioned in sub section 2 of article 19 of the constitution. India being the world largest democracy, media is the fourth pillar of the democracy. Media acts as the voice of the people. Films are the important element of media. The films greatly influence the people in India; hence it is necessary to make sure that the films portrayed to the public are presentable. Film censorship thus plays a vital role in previewing the film and make the necessary alterations and certifies it to be watched by a suitable class of people. This led to the provision of the cinematograph act, 1952 (act 37 of 1952).
In 1989 the supreme court in a judgement held that the certification of the film becomes necessary as the film motivates the thought process and the actions of the individual. The film guarantees a higher degree of attention and retention in comparison to printed words. In addition to audio-visual mixture, the environment of the theatre eliminates the distracting thoughts thus resulting in a stronger impact on the minds of the audience. Therefore, the film is potential to spread positive as well as negative messages. Considering the influential powers of the movies, certification becomes mandatory.
The apex court observed that pre censorship of films was necessary because the viewers of cinema are not as ‘discerning’ as newspaper.
FACTS OF THE CASE
Udta Punjab is a Bollywood movie which is created by Abhishek Chaubey and co-produced by Phantom Films and Balaji Motion Pictures. The film depicts drug addiction problem in the state of Punjab. The producers applied for film certificate A on 10th May 2016 and also informed the release date was 17/06/2016. On 24/05/2016, after reviewing the film The Central Board of Film Certification (CBFC) informed that the film was referred to the revising committee. The revising committee reviewed the film on 03/06/2016 and sent the letter to the producers on 08/06/2016 and asked for 13 cuts to certify the film for the viewers.
- To delete the sign board of Punjab which appears in the starting of the film.
- To remove Punjab, Jalandhar, Chandigarh, Amritsar, Tarantaran, Jashanpura, Ambesaw, Ludhiana and Moga from
- To remove words “Chittave” & “Harami” everywhere from first song and background
- To delete the words ‘Tom di cock jevhe chitti chitti cock’ and ‘coke cock’ from second song and background.
- To remove the words Behenchod, Behenchodo, Bund, Tatte, Gandia, Gandu, Laudu, Haramzadi, matherchod, chusa hua aam, kulti, maiyove, kudi chode, lulli, gashti.
- To remove words election, MP, Party, MLA, Punjab Parliament.
- To delete visuals of itching side portion of Sardar from song no 3.
- To remove the shot which shown the close-up of injecting drugs wherever it appears.
- To remove the shot where tommy urinates in front of the crowd.
- To remove “Jacky Chain” as name of dog.
- The first disclaimer should be in audio and video and to be changed as– ‘The film focuses on the rising menace of drugs and the war against drugs and is an attempt to show the ill-effects of drugs on today’s youth and the social fabric. We acknowledge the battle against drugs being fought by the Government and police. But this battle cannot be won unless the people of India unite against the menace.’
- To increase the second disclaimer according to the audio and video.
Aggrieved by this decision, the director and producers of the film filed a writ petition before the Bombay high court as cuts violated the freedom of free speech and expression.
The relief asked under the petition was to issue “A” certificate for the movie in question with no cuts and conditions as it violates the fundamental right of the petitioners.
Mr. Kadam was the senior counsel appearing from the petitioners. He specified that section 5D of Cinematography act asks for constitution of an appellate tribunal which should include 1 chairman and maximum 4 members appointed by the central government for the purpose of appeals under section 5C. Mr. Kadam pointed out that they were informed that the chairman won’t be available till 17th of June 2016. However, the petitioners have already specified that the date of release of the movie was 17th June 2016. The theatres were also booked. Delay in release of the movie would cause a great loss. After hearing the initial hearing, Mr. Sethna appearing from the respondent sides stated that the chairman will be available.
Mr. Kadam submits that the constitution of India provides the fundamental rights, one of them being the right to free speech and expression to its citizens. However it also has various reasonable restrictions where these rights cannot be used. Freedom of speech and expression includes the right to demonstrate a movie for public viewing. In order to make the movie suitable for the audience, it is certified by a certificate as mentioned under cinematography act 1952.The certificate cannot be refused except in the case where it was mandatory to do so in case of reasonable restrictions. The application of certificate for film was for “A” certificate and not for universal exhibition. “A” indicates that the movie is for adult viewers which is for a person who has completed 18 years of age. Even though the board is empowered to direct any cuts they shall not be biased while using that power. The 13 cuts suggested in the film clearly violates the fundamental right of free speech and expression.
After hearing the arguments from both the side the court also read the script. The court held that the dialogues and lyrics with blunt words should be permitted as the film is an art work and it should be viewed in its entirety. The court also quoted the hon’ble supreme court’s decision in the two cases.The court held that this should serve as a reminder to the board. The court felt that this is a very small cause and a regular happening event, and they should not bother the court for the same. One should realise that the court’s time is precious and one should not take it for granted. The court declared its decisions with respect to all the cuts as follows.
With regards to cut 1 and 2, the court held that it is the creative freedom of the individual to choose a place and depict the same. It is the very theme of the movie to throw light on the drug problem in the state of Punjab. It is obvious that the movie will have the name Punjab and will refer to the towns of the state. As the title has the word “ Punjab” and if the film shows that drugs are freely available in a particular state, the court does not find any reason for deleting it. By no means it questions the sovereignty and integrity of India
For cut no. 3 and 4, the court suggested that such scenes or dialogues shall be viewed in totality. Selecting few words and targeting them is completely wrong. One should not forget that it is a fictional story. In order to create hatred for the villains, use of such words is necessary.
Next is the question pertaining to cut no. 5. The court said that, the language used in the dialogue is used to portray the character and these characters use this kind of language. These dialogues should not be misinterpreted and directly deleted. Generally if the words spoken are seen with the scene they effectively highlight the principal message. The court didn’t find any material to delete the dialogue with reference to guideline 2(ix).
With regards to cut no. 6, by no means it violates the guidelines of 2(xiv) as the dialogues do not target any particular political party or outfit.
The court does not find any reason for cut no. 7 and 8. One single closeup shot by no means encourages or glamorise the drug addiction and does not violate any guidelines. The authority should view the work in its totality.
There is no reason to delete the cut no. 10 and 11. One line cannot be isolated and read. The test while previewing the movie is to see the work in its totality.
The last question before the court is the cut no. 12 with regard to disclaimer. According to the court, disclaimer means rejection of the things in association with the film. After observing the alterations recommended by CBFC and insertions by petitioners, the court adjured to delete the original disclaimer referring to a particular country. Decision of cut no. 12 should be modified accordingly.
No question arises with regards to cut no. 9 as the petitioners have themselves agreed to delete it, if the court finds fault in it.
The court thus held that respondent shall issue the “A” certificate within 48 hours from that day.
While exercising the freedom of free speech and expression, one should not ignore the limitations which comes with it. The Hindi Film Industry plays a very important role in influencing people. Hence certification of the film is extremely important.
However, the CBFC should not be discriminatory while granting the certificates and ask the deletions in the film. One should keep in mind the creative freedom of the individual as well as his fundamental right. These rights cannot be tempered unless it is required for the sovereignty and integrity of India and as mentioned in the constitution.
By no means one is questioning the authority or the powers of the CBFC, but the CBFC should not misuse the same in the name of the “guidelines”. The deletions should only be suggested after the work is viewed as a whole and in its entirety. Censorship is necessary but not at the cost of the creative freedom of the film maker.
 The Constitution of India, a.19(2)
 S. Rangarajan v. P. Jagjevan Ram,  2 SCC 574 (SC)
 Phantom Films Pvt.Ltd. and ors, v. The Central Board of Film Certification and ors,
 (4) ABR 593, (BOMHC)
 Cinematography Act 1952,ss. 5C,5D
 Raj Kapoor and Ors. v State and ors, AIR 1980 SC 258 (SC)
Raj Kapoor v Laxman, AIR 1980 SC 605 (SC)