Censorship Vs Freedom of Expression
*Pallavi Sharma
This has been a strange year for my freedom of expression. I was told early this year that my freedom of online expression was upheld by the Supreme Court which found Section 66A, the impugned provision of the IT Act to be sweeping and vague1. The Court said what could be considered ‘grossly offensive’ changed form and shape with the moral and social perception of the reader.And as such, a provision, damning the freedom of expression on a vague ground was nothing less than an arbitrary exercise of power by the State, it felt.
Interestingly, this landmark decision followed in tow the controversy over the one infamous ‘AIBRoast’, showcased for an audience that was perhaps familiar with the format of the programme and the style of the performers2. Format-wise, the AIB shows defy genre and poke fun at the powers that be and serve the public interest in their own unique way through jibes and risqué humour. The show was subsequently uploaded on video portal Youtube with a warning that the content might be unsuitable for some and viewers must exercise discretion. The episode set the insolent cat among easily offended pigeons and what followed was a spate of obscenity charges slapped at the crew and passionate debates over the state of censorship in the country3.
A little earlier the same year, I witnessed much furor over a list of objectionable words issued by the Central Board of Film Certification (or the ‘Censor Board’) for feature and short films to be screened in the country4, under the directions of the new Chairperson Mr. Pahlaj Nihlani. A film-maker, of arguably Bgrade films, Mr Nihlani was appointed after his predecessor, Ms. Leela Samson,5 quit the Board rather unceremoniously alleging political arm-twisting to pass a controversial film ‘Messenger of God’6 produced by the writer-director-hero and self-styled godman Gurmeet Ram Rahim Singh of Dera Sacha Sauda fame. I had also witnessed, earlier in the year, an ideological tussle over the ban on Leslee Udwin’s ‘India’s Daughter.’
Recently, the Supreme Court, respecting the idea of adulthood and autonomy over choice, refused to proscribe pornography as long as it was not a public nuisance7, only to be shortly followed by the notification from the Ministry of Communications and Information Technology banning 857 pornographic and humor websites in an attempted crackdown on online child pornography. However, the following week, the Government in a dramatic flip-flop withdrew the complete ban, extending it only to childpornography based content and providers, echoing the Supreme Court’s observation on private viewing of porn8.
1. Shreya Singhal v Union of India,Writ Petition (Criminal) No.167 of 2012, March 24, 2015.
2. AIB Knockout: As video goes viral, VinodTawde orders probe into ‘abusive’ content, February 3, 2015, http://bit.ly/ 1NIBCby,accessed on October 15, 2015.
3. AIB knockout: Twitterati divided on Ranveer Singh and Arjun Kapoor’s‘roast’-ing, February 3, 2015, http://bit.ly/1HSCIFw , accessed on October 15, 2015.
4. Here’s a list of words banned by the Censor Board of India , February 13, 2015, http://bit.ly/1ICp7Cj, accessed on September 19, 2015. This list was subsequently withdrawn in light of objection by other Board members.
5. PahlajNihalani appointed Censor Board chief, January 20, 2015, http://bit.ly/1Tyw6wL, accessed on September 19, 2015.
6. MSG fails to get Censor Board clearance for fear of fanning communal tension, January 13, 2015, http://bit.ly/1ICpbC3 , accessed on September 15, 2015.
7. Can’t stop an adult from watching porn in his room, says SC, http://bit.ly/1TpAX4h , accessed on September 20, 2015. KamleshVaswani v Union of India &Ors., Writ Petition(Civil) No. 177/2013, July 8, 2015.
Chiming in the series of ‘crackdowns’ on content, the Censor Board has recently restricted the eligibility of films certified as for adult viewing to be screened on television despite edits to make it universally viewable9.
I, the average Indian consumer of internet, cinema and satellite TV, am left befuddled in the cornucopia of laws, statements and policies, wondering if I have the right to write what I want but not watch it, or watch it in a theatre but not on television! I am compelled to wonder how my right, as an adult, to express opinion online is isolated from my right to access content of my choice, online or offline. This essay overviews the web of laws and authorities that govern various forms of creative visual expression- movies, music videos, documentaries, satellite TV, news, advertisements and theatre, and sanitize them for appropriate viewership, in order to highlight the discrepancy in parameters of censorship. I would also briefly discuss why the world of ‘online entertainment’ follows different rules than the offline counterpart, questioning the basis of this implied inequity.
Cinema
The Cinematograph Act of 1952 is the central act governing public exhibitions of films, trailers and music videos in the country. It constitutes the ‘Board of Film Certification’, for the purposes of sanctioning films for public exhibition10. This Board functions as an executive body under the Ministry of Information and Broadcasting with members and Chairperson appointed under the auspices of the central government.
Interestingly, the Board was initially called the ‘Board of Film Censors’. However, in 1983, the Act was amended to replace ‘censor’ with ‘certification’. The marginal note to the relevant provision the Act however, retains the original name of the Board, casting a cloud on the very nature of the function of the ‘Censor Board’.
The Board after examination may refuse sanction to a film11 or grant it with certificates namely for unrestricted public exhibition (U), with endorsement of parental consideration (U/A), for exhibition to adults only (A) or restricted exhibition to members of a profession or a class of people apropos the nature, content and theme of the film12. If the Applicant is aggrieved by the certificate granted, an appeal may be made within 30 days of certification order to the Film Certification Appellate Tribunal appointed by the Central Government and chaired by a retired High Court judge13 .
The Act prohibits a film to be certified for public exhibition if it, wholly or in parts14, 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
8. We are not a totalitarian state and cannot be asked to moral police: AG tells SC in the Porn Petition, August 10, 2015, http:/ /bit.ly/1R7AhSc, accessed on September 20, 2015. See also Supreme Court women lawyers contest government stand on porn, http://bit.ly/1ONIFoI, September 21, 2015, accessed on September 21, 2015
9. PahlajNihalani Has Essentially Barred Adult Films From Being Aired On Television, July 10, 2015, http://huff.to/1TywgnN accessed September 19, 2015.
10. Section 3, Cinematograph Act, 1952
11. Section 4(1)(iv)
12. Section 5A
13. Section 5C
The Central Government may also prescribe additional guidelines to be followed in addition to bearing in mind the above principles. The Act also grants the Central Government plenary powers to suspend or revoke the certificate of a film at any point except when the matter is pending before the Tribunal.15 Additionally, the Lieutenant Governor or the Chief Commissioner in a Union Territory, as the case may be and the District Magistrate of any district may suspend the exhibition of the film for two months within his jurisdiction and deem the film to be uncertified during that duration if it is likely to cause a breach of peace16. This period may be extended on orders of the Central Government. Evidently, despite the Board being an expert body, the State exercises more than dominant control over visual media through the means under the Cinematograph Act, in addition to the powers lend by the Penal Code, Information Technology Act and various state policing acts.
The Cinematograph Rules, 1983 lay down further procedure for operation of the Board and specify that in addition to the principles and guidelines prescribed in the Central Act, the Board should bear in mind that
“the objectives of film censorship are to ensure that the medium of film remains responsible and sensitive to the values and standards of society; that artistic expression and creative freedom are not unduly curbed and that censorship is responsive to social change”17
They mandate that the examiner recommending the certificate to be satisfied that the film has been judged “in its entirety from the point of view of its overall impact and examined in the light of contemporary standards of the country and the people to which the film relates”18.
Television
The television broadcasting industry functioned in a legal vacuum until 1994 when the Cable Television Network Rules, 1994 (“Cable Rules”) were notified, drawing from the Cable Television Networks (Regulation) Ordinance passed the same year. Subsequently, in 1995, the Cable Television Networks (Regulation) Act, 1995 (“Cable TV Act”) came into force in order to create a license regime for broadcast on cable networks.
Section 20 of the Act empowers the Central Government to prohibit the operation of any cable television network in public interest if it deems fit in interest of
• sovereignty or integrity of India; or
• security of India; or
• friendly relations of India with any foreign State; or
• public order, decency or morality, or
• contravention of the Programme Code under Rule 6 of the Cable TV Rules.
The Cable Rules under Rule 6 prohibit a programme to be carried in a cable service if it19:
• Offends against good taste or decency;
• Contains criticism of friendly countries;
14. Section 5B
15. Rule 6 16 Section 13
17. Cinematograph Rules, 1983, Form VIII
18. Cinematograph Rules, 1983, Form VIII, Part B
19. Rule 6(1)
• Contains attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes;
• Contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half-truths;
• Is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote anti-national attitudes;
• Contains anything amounting to contempt of Court:
• Contains aspersions against the integrity of the President and Judiciary:
• Contains anything affecting the integrity of the Nation,
• Criticizes, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country;
• Encourages superstition or blind belief,
• Denigrates women through the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals;
• Denigrates children;
• Contains visuals or words which reflect a slandering, ironical -and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups:
• Contravenes the provisions of the Cinematograph Act, 1952.
Further, the Rules advise that operators should try and telecast programmes that project women in a positive, leadership role of sobriety, moral and character building qualities20.
As there does not exist a parallel institution as the Censor Board for television, the Cable TV Act authorized the competent authority to prohibit any cable operator from telecasting any programme or channel if, it was found to be not in conformity with the prescribed Programme Code21. In 2005, State and District Level Committees were constituted to facilitate the task of content regulation under the Act22.
In 2011, the Indian Broadcasting Foundation (“IBF”), a consortium of television broadcasters in India, introduced the Broadcasting Content Complaints Council (“BCCC”) and associated Guidelines to self-regulate content broadcasted on television. The Guidelines thematically cover national interest, racial and religious harmony, ill treatment of children, social values, sex and nudity, violence and crime, gambling, drugs, smoking, tobacco consumption, alcohol, defamation, harm and offence. Viewers can directly complain to the BCCC. In the event of non-compliance of a directive by a channel even after the matter is escalated to the IBF possibly causing expulsion, the case may be referred to the Ministry of Information and Broadcasting (“MIB”) for appropriate action.
Similar bodies, namely Advertising Standard Council of India and News Broadcasters Association perform self-regulation for advertisements and news respectively.
This said, television is not free from influence of the Censor Board as the above exclude from the purview movies, music videos including songs and their lyrics, and trailers need to be vetted by the Board before being screened on television. This function of the Censor Board has lately been under the media scanner and has originated a fair share of controversy.
20. Rule 6(2)
21. Section 19
22. Ministry of Information & Broadcasting, Government of India order No. 2301/7/2003-BC-III, September 6, 2005
The Programme Code prohibits from broadcasting on television any content that has not be certified as ‘unrestricted for public exhibition’ by the Board. However, the Board had been, until recently, re-certifying films with ‘A’ and U/A’ to make them eligible for satellite exhibition with appropriate cuts. The issue was brought to the fore in 2012 when the MIB canned the screening of an A-certified movie, re-certified with edits as U/A in prime time on national television, indicating that such movies should be reserved for the late-night slots (post 11 pm) when parents are home to supervise their children23. While the IBF guidelines prescribe that ‘Restricted Access ‘R’ Programmes which may not be suitable for Children & Young viewers to be scheduled for telecast between 11 PM and 5 AM, no such categorical directions have been given by the MIB, leaving the law murky on the subject. Further, the very act of re-censorsing of movies by the Board has been called into question before court as the Board purportedly lacks legal authority to recensor movies. This lack of clarity in law has resulted in discontentment in the cinematic fraternity, leading to allegations of arbitrary exercise of powers by the Board24 and economic unviability of producing movies with thematically adult content25.
Interestingly, despite the BCCC, the MIB constitutes an Intern-Ministerial Committee on Regulation of Content comprising largely of bureaucrats26 to monitor adherence to the Programme Code by the broadcasters. An Electronic Media Monitoring Centre (EMMC) has also been set up to monitor and record upto 300 channels on a 24x7 basis to enable the Ministry to suo motu initiate action without depending on the recordings provided by the channels which were subject to manipulated by the channel27. In addition to the above, State and District level Monitoring Committees exist to facilitate enforcement of the Programme Code locally, empowering the authorized officer to take appropriate action as per Section 19 of the Act if the content telecasted on local cable or satellite TV channels has local implications. When the impact of the content is national, jurisdiction would be retained by the MIB28.
Regrettably, the state complaint procedures do not always work in tandem with each other, so as to maintain the autonomy and integrity of a system of self-censorship and not state-censorship. For instance, what should ideally have been an appellate procedure or last resort, became the forum of first instance in the case of Comedy Central in 2013, when the IMC, by-passing the BCCC process, issued a show-cause notice to the channel for broadcasting content that “offended good taste and decency”, barring the telecast of the Channel for 10 days29.
Other than these codes for digital media, the obscenity laws in the Indian Penal Code30 determine the threshold for post-exhibition censorship and offended viewers are in their right to approach the courts with jurisdiction alleging obscenity in the showcased content. However, theatrical performances are not insulated from pre-censorship as some states have chosen to retain their archaic colonial laws for censoring and canning ‘objectionable theatre’31. In 2014, the Supreme Court came down heavily upon the Tamil Nadu Dramatic Performances Act, 1964, which was used in support of law enforcement authorities disrupting the performance of the controversial and highly acclaimed play ‘The Vagina Monologues’ in Chennai32. These laws feature in the list of obsolete laws by the Law Commission and have been recommended for repeal for being incongruous to contemporary social standards33.
23. Order against screening of ‘The Dirty Picture’, Ministry of Information & Broadcasting, Government of India order No. 804/66/ 2012-BC.III, April 20, 2012.
24. Come clean on what’s unclean’ , June 28, 2012, http://bit.ly/1ICpixI, accessed on September 21, 2015.
25. Ibid, No more screening of U/A films on TV?, September 7, 2015, http://bit.ly/1QtlUWU , accessed on September 21, 2015.
26. Ministry of Information & Broadcasting, Government of India order No. 3101/1/2011-BC.III, November 11, 2011. See also Apar Gupta, MIB’s arbitrary bans, http://bit.ly/1ONIN7w , accessed September 20, 2015.
27. Extract from Annual Report of Ministry of Information &Broadcasting : 2011-2012, Content Regulation of TV Channels, http:/ /bit.ly/1ONIOs9 , accessed on September 20, 2015.
28. Ministry of Information & Broadcasting, Government of India order No. 2301/7/2003-BC-III, September 6, 20005.
Online content
Web-episodes or webisodes and online audio-visual content meant exclusively to be streamed or downloaded on the internet has gained ground in the last decade as a preferred format over television and regular broadcasting. In India, such content is regulated by the Information Technology Act, 200034 along with the overarching obscenity and public order provisions in the Penal Code35. However, precensorship of content is non-existent as the internet allows anyone to create and publish content and unlike traditional formats, the broadcasters (Internet Service Providers in this case) have minimum control over the content being uploaded36 and State reaction is more often than not solicited post-publication by drawing attention to the content by offended viewers as happened in the AIB case mentioned above.
A cursory glance through the above rules is sufficient to understand that despite having expert bodies for certification and censorship, the State remains heavily involved in regulating the content of visual media in the country.
The growing discontentment in the industry about excessive state involvement may not be without reason. Bureaucracy, though deft in administration, may not have the cinematic and artistic assessment of a work that is needed to sit in adjudication over the legitimacy of a complaint. Equating ‘contemporary’ moral standards with that of those who speak the loudest may be damaging to artistic and creative freedom. Similarly, when an opaquely appointed Board exceeds its mandate of certification and uses censorship by strictly determining appropriate content for different age groups, it may be pushing the limits of freedom of expression.
Self-censorship has been often hailed in as the alternate to State censorship, by giving the creator the freedom to decide the limits of their own work. For instance, in the United States, visual media works are rated on an ‘advisory’ system, by private institutions who have the backing of the industry. The Motion Picture Association of America rates movies that are submitted to it according to appropriate viewership. Even though there is no mandatory requirement to be rated (like ‘certification’ for public exhibition in India), theatres may not be willing to exhibit movies commercially without a rating. However, cable television sees a fair bit of censorship by the Federal Communications Commission, a government authority.
While there are obvious advantages of being censored internally, the experience in Indian television industry may not be very encouraging. After crackdowns by the ministry on supposedly distasteful content, channels have erred on the side of caution to the extent of being ridiculous. Other than arbitrary pixelating of innerwear in mainstream commercial family cinema37 to muting ‘uterus’ from a popular English sitcom38 and changing ‘hell’ to ‘inferno’ in the subtitles39, the fear of Big Brother is pushing TV channels to exhibit the muted and beeped ghouls of what was once cinematic expression of ideas.
29. Not funny: Comedy Central channel banned for 10 days for offending good taste, May 26, 2013, http://bit.ly/1Tywnj7 , accessed on September 21, 2015. Channel ban unfair: Broadcasters’ panel, http://bit.ly/1QtlWy5, accessed September 21, 2015.
30. Section 292 and 293 31 See for instance, The Karnataka Dramatic Performances Act, 1964.
32. India’s Supreme Court breaks police stranglehold on theatre, http://bit.ly/1N9iRkq, accessed September 21, 2015.
33. Law Commission Of India Report No. 248 “Obsolete Laws : Warranting Immediate Repeal” (Interim Report), http://bit.ly/ 1ICpr4c, accessed on September 21, 2015.
34. Section 67, 67A, 67B 35 Section 292, 293, 294, 295
36. AnirudhRastogi, RishabhSinga, Does The Law Have A Sense Of Humour? And Why Comics Need to Know the Answer, http:/ /huff.to/1SLND4n, accessed on October 15, 2015.
37. ‘Queen’, the commercial success of 2014, when telecasted in primetime on national television saw the protagonist’s nnerwear arbitrarily pixelated though it was it was contextually not offensive or lascivious.
Understandably, it is difficult in a democracy to establish uniform standards for ‘appropriateness’ or even advocate the idea of abolishing the Board completely in a society vulnerable to motivated violence. However, it would be perhaps useful to take a hard look at how certification and censorship play out in the industry. While self-censorship may have its own flaws, it may flourish without compromising on artistic liberty if the State re-evaluates the understanding of ‘contemporary’ and is willing to restrict its interference to extreme cases. The Board should instead focus on banning content that can cause disruption of peace and communal violence instead of engaging into a futile exercise of dictating the sense of morality for an entire nation. The intended mandate of ‘certifying’ motion pictures should be reclaimed over the assumed function of censoring content from artistic works.
Similarly, for the small screen, parameters of ‘offensive’ need to be understood as inherently subjective and content needs to be judged in light of the taste of the audience it specifically caters to. For instance, those who may be offended by extremely repressive depiction of women in mainstream soaps may not feel the same way while watchinga gig on Comedy Central as viewing the two through the same lense would be like comparing apples and oranges. If ‘corrupting’ young minds is the driving concern behind restrictions on art, may be the burden should be shared between the State and the guardians and the ‘graveyard slot’ of 11 pm to 5 am may be reserved for screening thematically adult content instead of subjecting the work to indiscriminate cuts and edits without requisite sensitivity or authority.40
Lastly, one must understand that with the digitization movement and access to the internet, presuming that content of visual media can be sanitized is merely deluding oneself. More often than not, unsupervised access to internet by minors vitiates the State’s argument of only telecasting ‘universally viewable’ content on television in the interest of protecting young children from an overdose of sex and violence.
One must also remember that bans and gags have historically incited curiosity in the audiences, creating a sneaky buzz in the showbiz market. From Deepa Mehta’s award winning ‘Fire’ and ‘Water’ to AIB’s controversial web-episode, active or passive censoring of creative art andwrenching the videos down has only led to more publicity and internet downloads.
After this lengthy enquiry, I believe that the Cinematograph Act is inherently weak and ambiguous. Television, even though working on a self-censorship model, is timid and over-skeptical in the fear of the State backlash. Online content is free from all rules and norms, unless attention is called to it, in which case, the loudest voice will, in all likelihood, emerge victorious irrespective of soundness of their arguments. It is, however, encouraging that amidst the scuttle for protecting the ‘fragile’ society, the judiciary has struck a chord of reason upholding the guiding spirit behind the freedom of expression-‘Don’t like it, Don’t watch it’41, even though somewhat inconsistently. May be, that is the only logical escape from the web of laws spun around my freedom of expression.
38. The word was muted in the telecast of the popular sitcom ‘Friends’ on Romedy Now.
39. See generally http://bzfd.it/1N9iTZy, accessed September 19, 2015.
40. Delhi HC to hear PIL against Censor Board nod to ‘Grand Masti’, http://bit.ly/1PUPDK3, accessed on October 16, 2015. 41‘Don ’t Like It, Don’t Watch It, September 3, 2014,’ http://bit.ly/1NDN7FI, accessed on October 16, 2015.
*Pallavi Sharma is a Legal Consultant in Common Cause
