Changing phases of movies and media vis-à-vis judicial process: A

contemporary context
Chandan Tiwari1
Simran Gangwal2

ABSTRACT:
This paper examines how movies and judiciary act in the interface between common man and
the government. Media, being the fourth estate of government, impacts the quality of
democracy in any state and asserts its role by strengthening and intensifying the quality of
democracy. In every democratic setup, the welfare and need of the people is paramount and
the opinion and wants of the people can never be made obvious, and it is ensure this purpose
only that the right of freedom of speech and expression has been imbibed within the
constitution of India as a fundamental right. However, since the gradual evolution of freedom
of media, one can trace the evolution of censorship on movies as well. This censorship of
movies has been recently seeing wide popularity due to various moral ground issues. This paper
aims to highlight the various instances which led to banning of movies and then further goes
on to highlight to role of judiciary and how the stance of judiciary has changed during the years
in the light of censorship of movies. The recent trend of banning movies on various minor
grounds has risen up to the level where it poses a direct threat freedom of expression.
Henceforth, provision relating to the censorship requires radical changes and reconsideration
by the judiciary.
The paper aims to study the various instances where the movies were banned and try to analyze
the transition of judicial process in relation to movie industry.
Keywords: Media, Movies, Judiciary, Censorship

1. INTRODUCTION
India, despite being the largest democracy on this planet, has had a prolonged history of movie
makers fighting external factors on a habitual basis. According to the stats available on
UNESCO site, India produces the highest number of motion pictures in a year than any other
country.

1
5th year law student, Alliance School of Law, Alliance University, Bangalore.
2
5th year law student, Alliance School of Law, Alliance University, Bangalore.

1
However, post-independence era, one can find the avalanche of movies which faced the wrath
of audience on various grounds like not confirming to the religious, moral or political codes.
Various instances can be traced from post-independence era to the very recent buzz regarding
“Padmavat” which shows that ‘censorship’, which itself has been debated since years is used
as legal tool to curb the freedom of speech and expression of artists whose political ideologies
aren’t aligned with that of the government.
The abuse of ‘censorship’ puts judiciary in a critical position to diligently reduce the plight of
such movie makers by way of judicial activism. Indian judiciary has gradually expanded its
ambit in terms of expanding the scope in Article 19(1)(a) of Indian Constitution, thus
acknowledging the creativity of movies.
With the substantial increase in the number of motion pictures made in India, the trend of
banning movies on various external grounds is at its all-time high. Freedom of speech and
expression which in inherent under Article 19(1)(a) of Indian constitution, is often curbed using
the ‘censorship’ as a tool to challenge those whose ideologies aren’t aligned with people in
government.
However, this trend of banning movies by using ‘censorship’ is not something new. Evidences
can be traced during the time of ‘Emergency’ where it was alleged that the roll of the movie,
“Kissa Kursi Ka” was completely destroyed since the movie was related to the then PM, Indira
Gandhi. Forwarding to the contemporary time where the movie “Padmavat” faced severe evils
of ‘censorship’ shows that there is lack of empathy for the movie makers (artists). Despite the
changing dynamics of movies and media, ‘banning’ has remained constant.
In the wake of globalization where ‘media’ encompasses a wide range of mediums, the current
paper aims to study only the changing phases of Indian movie industry along the period of time
and the transition in the interpretation of Art. 19(1)(a) by Indian judiciary.
India, since time immemorial has had a history of putting movies under the scanner of
censorship. Once can trace various instances where censorship has often been driven by some
or the other kind of political motive. With the gradual boom in the media industry, movies now
have become the easiest victim to influence the society and for the same reason, government
has been keen in scrutinizing every movie.
The recent trend of banning movies on various minor grounds has risen up to the level where
it poses a direct threat freedom of expression. Henceforth, provision relating to the censorship
requires radical changes and reconsideration by the judiciary.

2
2. CINEMA AS AN ARTISTIC EXPRESSION OF IDEAS:
Cinema is a medium that is enjoying enormous popularity and is an entertainment part for
common man with its advent in 1913 with the release of first full-length movie “Raja
Harishchandra”. According to the survey Indian cinema holds as one of the largest film
industries in the world and is the largest producer of films in the film industry all over the
world. Cinema is an integral part in a socialist country, as it helps in spreading the socio-
political awareness, and the propaganda for entertainment. Cinema is an artistic expression of
ideas, stories and often opinions, sometimes inspired by reality occasionally set to music,
designed to enthral, enchant, or simply to entertain. There are few other mediums of
communication that can claim rival levels of pervasive influence and presence in our daily
lives.
History shows that films have sparked off political debate and threatened governments,
heralded social change causing society to deviate from age old stigma and also sent real life
lovers to their death in their misplaced hope of emulating the classic romances. It is perhaps in
salute to such impelling powers of persuasion that it is the only form of art, deemed fit to be
regulated by an Act of Parliament. It is a medium to show a larger picture of social- political
issues on the screen in helping the growth and fulfilment of individual personality. Cinema is
also a source for bringing a positive change in the society. The role of cinema is to bring the
idea of expression and free thought.
Cinema is a worth of thousand words. Cinema is all about motions and expressions3.
Expression, in its intrinsic sense is a matter of liberty and right. The very sources of expression
are liberty of idea and right to know . the essence of democracy lies in Free Speech. The
freedom of expression includes growth and fulfilment of individual personality. Freedom of
speech, as interpreted by courts, includes freedom of discussion and dissemination of
knowledge4. The fundamental right of freedom of speech and expression which has been
guaranteed to every citizen under Article 19(1)(a) has become inalienable under the
constitution of India,1950. The basic aspect of any democratic country are its people and what
indicates a strong democratic country is that the voice of the people should be taken into
consideration.

3
Arun Pratap & Prof. A.R. Dangwal, Freedom of Expression & Sovereignty And Security of Nation, 23 IOSR-
JHSS 31, 33-34 (2018).
4
Ibid.

3
Films have always been regarded as constituting a powerful medium of expression. It is
judicially recognized that cinema is a form of speech and expression5.
In every democratic setup, the welfare and need of the people is paramount and the opinion
and wants of the people can never be made obvious, and it is ensure this purpose only that the
right of freedom of speech and expression has been imbibed within the constitution of India as
a fundamental right.6
Article 19(1)(a) of the Indian Constitution which states, the freedom of speech and expression
extent to the freedom of press. Media is the key to express opinions and views it is also an
instrument for forming individual’s opinion and their views on topics related to regional,
national and international outline. The pivotal role of media is to enhance the thinking process
of millions.
The right of freedom of speech and expression is considered to be the first condition of liberty
for an individual, and is predominant for any democracy, and thus equal importance needs to
be given7.
Although , the opinion expressed by the filmmakers in their film are subject to some restriction,
if the film causes a threat to national sovereignty, security of the state, national peace, etc.
Keeping this in mind, the Cinematograph Act, 1952, and Cinematograph (Certification) Rules,
1983, prescribe the parameters and process for censorship of films and grant of certification in
respect of films declared to be fit for public exhibition8.
Many of the times Indian courts have interfered or restricted the films which are not fit for the
public which is authorised by the Central Board of Film Certification(CBFC).
Cinema has become a powerful vehicle for culture, education, leisure and propaganda. In a
1963 report for the United Nations Educational Scientific and Cultural Organization looking
at Indian Cinema and Culture, the author (Baldoon Dhingra) quoted a speech by Prime
Minister Nehru who stated, “…the influence in India of films is greater than newspapers and
books combined.” Even at this early stage in cinema, the Indian film-market catered for over
25 million people a week- considered to be just a ‘fringe’ of the population9.

5
Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230 (1915) .
6
INDIA CONST. art. 19.
7
Arun Pratap & Prof. A.R. Dangwal, Freedom of Expression & Sovereignty And Security of Nation, 23 IOSR-
JHSS 31, 35-36 (2018).
8
Madhu Chaudhary Gadodia & Naik and Co., India business law journal, freedom of expression and thought in
Indian Cinema, India Bussines Law Journal, Nov- Dec. 2019 at 30.
9
VikasShah, The Role of FILM IN Society,(19th June,2011),https://thoughteconomics.com/the-role-of-film-in-
society/.

4
3. THE FREEDOM OF SPEECH AND EXPRESSION IN INDIA:

The Supreme Court (SC) of India has been from time to time questioning the in which right
to freedom of speech and expression has been misused by the citizens of India. The
right to freedom of speech and expression is not absolute but is being regulated reasonable
restrictions. The Supreme Court (SC) of India has been from time to time questioning the
manner in which the right to freedom of speech and expression has been misused by
the citizens of India.

In a judgment, Justice Beg, in Bennett Coleman & Co. v. Union of India10 , said that “the
freedom of speech and of the press is the „Ark of the Covenant of Democracy‟ because public
criticism is essential to the working of its institutions.” Equally, in S. Khushboo v.
Kanniamal11, the Court stated that “the importance of freedom of speech and expression though
not absolute was necessary as we need to tolerate unpopular views. This right requires the free
flow of opinions and ideas essential to sustain the collective life of the citizenry.” While an
informed citizenry is a pre-condition for meaningful governance, the culture of open dialogue
is generally of great societal importance12. The Supreme Court of India has been from time to
time questioning the manner in which the right to freedom of speech and Expression has been
misused by the citizens of India13. The right to freedom of speech and expression is not absolute
but is being regulated by reasonable restrictions imposed under Article 19(2)14 of the
Constitution of India. The Supreme Court has interpreted the meaning of the term “restriction”
in different ways in its various landmark judgements. Communication through the way of film
media is viewed in the form of speech and expression in India. Article 19 of the Universal
Declaration of Human Rights(UDHR)15and International Covenant on Civil and Political
Rights,1966(ICCPR)16 that provides for the promotion and protection of the right of speech
and expression. It also provides the protection in the from of art including films17.In India films

10
(1973) 2 SCR 757.
11
(2010) 5 SCC 600.
12
Shreya Singhal v. Union of India (2013) 12 SCC 73.
13
Vivek Dhupdale, The role of Central Board of Film Certification (CBFC) with reference to Right to Freedom
of Speech and Expression in the Indian Film Industry, (Dec 3,2019,10:04 A.M).
14
INDIA CONSTI. Ar.19, cl. 2 sub -clause (a).
15
Universal Declaration of Human Rights, 1948, ar. 19.
16
Ibid.
17
supra note 13.

5
are one of the most important means of entertainment. But every move before it is released for
public exhibition has to undergo the process of legal censorship through the CBFC 18.

4. ISSUES OF BANNING OF MOVIES AND CENSORSHIP IN INDIAN

CINEMA

4.1.Meaning of Censorship:

Censorship’ is a term used for the process of restricting the ideas and information in foreboding
that it may disturb the public peace. In India, Article 19(1)(a) of the Constitution of India
provides for the freedom of speech and expression. Nonetheless, this freedom includes the
freedom to exhibit motion films. However, this right is not an absolute one. The state can
impose the restrictions on the content if it is against the interests of public policy, foreign
relations, sovereignty and integrity of the state, public order, decency and morality, or in
relation to contempt of court, defamation or incitement of an offense provided that such
restriction is reasonable19.

4.2.Who has the Authority to Censor a Movie?

A motion film is certified by Central Board of Film Certification (CBFC), the regulatory
authority in India, under Section 5A and B of the Cinematograph Act, 1952.

In addition, powers are given to the Central Government to suspend a granted certificate for
such period as it thinks fit or it may revoke such certificate if it is satisfies the conditions under
Section 5E of the aforementioned Act.

There are 4 types of censor certificates to be given:

1. U certificate: Sanctioned for unrestricted public exhibition

2. U/A certificate: Sanctioned for unrestricted public exhibition except any child below
the age of twelve years may be allowed to see such a film after the consideration of
child’s parents or guardian
3. A certificate: Sanctioned the film for public exhibition restricted to adults

18
The power to make laws for sanctioning of cinematograph films for exhibition is vested with the Parliament of
India according to Entry 60 of the Union List of the Schedule VII under the Constitution of India.
19
supra note 14.

6
 4. S certificate: Sanctioned the film for public exhibition restricted to members of any
profession or any class of persons, having regard to the nature, content and theme of
the film, e.g.: doctors, farmers etc.

It is difficult to distinguish between art and life in society; they no longer imitate each other
but appear to have merged. Political philosophies, social values, group behaviours, speech and
dress in society are reflected in the cinema and, like a true mirror, reflect back in society. It is
thus to view the cinema as a legitimate metaphor for society, this perception helps us to
understand society better20.

In spite of the vulgarity and extravagance of the popular Indian film we will be allowed
important insights into the social milieu within which people live, what are their popular beliefs
and practices are and the ethos, dreams and dilemmas of society the popular cinema will also
point to their changing nature21.

Section 5-B of the Act lays down the principles governing the certification of movies. The
section replicates Article 19(2) of the Indian Constitution. The section lists grounds of 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. The Board may deny certification to a movie
on any of these grounds22. The section also empowers the Government to issue further
guidelines.

In furtherance of this power, the CBFC issued the guidelines in 199123.They inter alia included:

(a) medium of film remains responsible and sensitive to the values and standards of the
society;

(b) artistic expression and creative freedom are not unduly curbed;

© certification is responsible to social changes;

(d) the medium of film provides clean and healthy entertainment; and

(e) as far as possible, the film is of aesthetic value and cinematically of a good standard.

20
Akbar S. Ahmed, Bombay Films: The Cinema as Metaphor for Indian Society and Politics, Modern Asian
Studies 26, 2 (1992), 289- 320.
21
Ibid.
22
Cinematograph Act, 1952, S. 5-B.
23
Ibid.

7
The constitution laid down several grounds to impose restrictions on Indian Cinema. To
understand the culled out principles governing censorship, a study of three cases has been laid
out:

(a) K.A Abbas v. Union of India24

The Supreme Court for the first time came across the issue of censorship of films under Article
19(1) (a) of the Constitution of India, in this case the Supreme Court upheld the censor of films
on the ground that films have to be treated separately from other forms of art and expression
because a motion picture is able to stir up emotions more deeply than any other product of art.
A film can therefore, be censored on the grounds mentioned in Article 19(2) of the
Constitution25. The brief facts that led to the case were, that the petitioner (a filmmaker)
produced a documentary titled “A Tale of Four Cities” wherein he highlighted the relationship
between the rich and poor by comparing the four cities of Calcutta, Bombay, Madras and Delhi.
The petitioner applied for a “U” certificate but was granted an “A” certificate. An appeal was
filed against the certification and subsequently a “U” certificate was granted, on the condition
of effecting some cuts and changes. Dissatisfied with this decision, the petitioner approached
the Supreme Court. The petitioner claimed that censorship itself offended his freedom of
speech and expression enshrined in Article 19(1)(a) of the Constitution. The Court speaking
through Chief Justice Hidayatullah, for the first time culled out certain governing principles of
censorship.
The Supreme Court held the view that “censorship of films, their classification according to
the age groups and their suitability for unrestricted exhibition with or without excisions is
regarded as a valid exercise of power in the interest of public morality, decency etc. This is not
to be construed as necessarily offending the freedom of speech and expression.

The Court held that, censorship of films and their classification according to the age groups is
a valid exercise of power in the interest of public morality, decency, etc.26 This is not to be
construed as necessarily offending the freedom of speech and expression. The most relied upon
part of the verdict was the observation that a person reading a book or other writing or hearing
a speech or viewing a painting or sculpture is not as deeply stirred as by seeing a motion picture.
Therefore, the treatment of the latter on a different footing is also a valid classification.27 This

24
(1970) 2 SCC 780.
25
K.A. Abbas v. Union of India, (1970) 2 SCC 780, p. 797
26
Ibid.
27
Ibid.

8
observation of the Court has been the justification every Government has given for imposing
restrictions and censoring the movies.

(b) Chand Bujh Gaya:

When a political leader is been criticised by the Indian Cinema, the society will conduct
protests and the doors of the judiciary will be knocked. The controversy around the movie
Chand Bhuj Gaya were based on the 2002 Gujarat riots28. The movie Chand Bujh Gaya stands
out as it had attained wide international acclaim. However, the Board refused it certification
citing threat to public order and Government disallowed its release citing law and order.29
The government has banned various movies under the term of reasonable restriction. There
were many controversies regarding movies such as Vishwaroopam, Parzania, BajiraoMastani
and so on. These movies were banned because of some sensitive areas involved in it.
(c) Kissa Kursi Kaa:
Kissa Kursi kaa got banned during the time of emergency, as it was allegedly based on Indira
Gandhi’s life. Kissa Kursi Kaa‟ ended up being the most disputable film ever constructed in
the history of Indian cinema. A political satire on former PM Indira Gandhi and the Emergency
The film depicted the desperate and corrupt practices adopted by politicians in order to siege
power by all means.
The film was accused of criticising the functioning of the Government under Indira Gandhi.
The film reel was burnt by the then ruling party minister and the film had to be re-shot. In fact,
national film industry had truly a troublesome time amid Emergency plotted by Gandhi30.
The board off-late has come under severe criticism for refusing to permit the screening of recent
films like Bollywood s‟ “Padmavati” (2018) “Lipstick Under My Burkha” (2017) & “Udta
Punjab” (2016) & Hollywood s‟ “Fifty Shades of Grey” (2015) and list grows31.
Existing Times:
The film Udta Punjab‟ has been the new scene of a controversy. The case is clearly drawn
between the need to censor movies versus the manner in which excessive censorship stifles
creativity and freedom of expression. The movie had been under the censor‟s scrutiny due to
use of cuss words, references to drug trafficking and state of Punjab etc. The review committee
of the CBFC had passed the movie with 13 deletions. However, the film-makers challenged

28
Arjun Natrajan, Film Certification in India and the curse of Pre- Censorship, Live Law.in, June 2, 2017.
29
Ibid.
30
DebobratGhose, CBFC should learn from history: 'KissaKursi Ka' holds lessons for Udta Punjab row, (Dec. 5,
2019, 10:20 AM), https://www.firstpost.com/
31
Vijay.G, A Study on Bans and Censorship issues in Indian Cinema, 120 IOCJ, 5 (2018).

9
the same in Bombay High court. The Bombay High Court directed the Central Board of Film
Certification (CBFC) to issue an „A‟ certificate to the movie with the deletion of one scene
and a modified disclaimer.172 While dictating the strongly-worded order, the court said, “The
power to exercise deletion and cuts should be consistent and in consonance with provisions of
the Constitution and directions of the Supreme Court, so that creative freedom is not
curtailed32.”
In 2018, there was a heated debate on the plight of the Movie “Padmavat”. The film was based
on the life of Rani Padmavat, she was the Rajput Queen and the film was about the war that
her kingdom faced. The KarniSena (a Rajput caste group) was responsible for the ban of film
on account of historical inaccuracies and causing disgrace to Rajput community. They had
gone a mile ahead and put a price on the heads of lead actress Deepika Padukone who portrays
the Queen and the Director Sanjay Leela Bhansali. The rumours are that the CBFC had asked
makers to make a horrendous 300 cuts to their 193 minutes film to grant a U/A certificate. It is
still unclear if this was enough for the KarniSena to uphold the dignity of the royal Rajput
Community. Later on January 18th the Supreme Court refused to impose any kind of ban on
the film. The film finally released on 25th January opening to rave reviews from the public and
a gross of nearly Rs.100 crore in 3 days33.

5. REFORMATIONS RECOMMENDED IN CERTIFICATION BOARD

While examining a film or causing a film to be examined for certification, the Board should be
guided by the following principles: 34
1. The medium of the film should remain responsible and sensitive to the values and
standards of society and as far as possible the Film should be of aesthetic value and
cinematically of a good standard;
2. Artistic expression and creative freedom should not unduly be curbed and certification
should be responsive to social change;
3. The film should be examined in the light of the period depicted in the film, context,
containing theme and people to which the film relates and should be judged from the
point of view of its overall impact and the contemporary standards of the country.
4. Notwithstanding any stated above, a film should not be certified for exhibition if in the
opinion of the Board, the film or any part of it is against the interest of the sovereignty

32
supra note 7.
33
Ibid.
34
supra note 31.

10
 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.
5. The Central Government can issue such directions as it may think fit setting out the
principles which shall guide the Board while granting a certificate under the
Cinematograph Act for sanctioning films for public exhibition.

6. CONCLUSION
Cinema being an important instrument of expression of ideas and free thoughts must remain
unrestricted from any kind of censorship. Restriction of any kind must not infringe upon the
basic human right of expressing one’s view in the community of civilized societies. However
at the same time one must keep in mind the practical realities of the society in which such ideas
are broadcasted. The peace and security of the society should not be disturbed in the process
of expression of one’s thoughts.
Since cinema as a public expression can influence the society at large, caution must be taken
while exhibiting the film to avoid any kind of chaos and threat to national security. Henceforth,
a balance must be maintained between the right of expression and the duty to maintain peace
in the society. The Certification Board must take a balanced approach while reviewing a film
and must take into account that the harmony between freedom of expression and sense of
security and peace in the society is maintained.

11