The ICFAI University, Dehradun

ICFAI Law School

Assignment for Media Law

(LE-428)

Short Note on Censorship

Submitted To
Ms. Anushmi Jain
Faculty Associate
ICFAI Law School

Submitted By
Rudresh Kumar Srivastava
B.A.LL.B. (Hons.)
16FLICDDN02047
 Censorship

The classification of films in accordance with their suitability for exhibition with or without
excisions has been held to be a valid exercise of power in the public interest. The justification for
censorship is that the social interest of the people overrides individual freedom. The State is in
the position of parens patriae, the guardian and promoter of general welfare and some restraints
on liberty may be justified on grounds of absolute necessity: The grounds on which censorship
may be justified are clearly and exhaustively set out in Article 19(2) of the Constitution. If the
film is unobjectionable and cannot be restricted under Article 19(2), the freedom of expression
cannot be suppressed on account of threats of demonstration or violence. To allow restraint on
such a ground would he "tantamount to negation of the rule of law and a surrender to blackmail
and intimidation. It is the duty of the State to protect the freedom of expression since it is a
liberty guaranteed against the State. The State cannot plead its inability to handle the hostile
audience problem. It is its obligatory duty to prevent it and protect the freedom of expression".
The fundamental freedom under Article 19(i)(a) can be reasonably restricted only on the grounds
mentioned in Article 19(2). The restrictions must be justified on "the anvil of necessity and not
the quicksand of convenience or expediency". The Guidelines for Certification of Films for
Public Exhibition's under Section 5-B, Cinematograph Act, 1952, by and large, conform to the
grounds for restrictions under Article 19(2). But there can be no straitjacketed rules for
censorship. Some guiding principles, that have been laid down and reiterated by the courts from
time to time, are as follows.

Guiding Principles on Censorship

1. Hicklin’s Test: “I think the test of obscenity is this, whether the tendency of the matter
charged as obscenity is to deprave and corrupt those whose minds are open to such
immoral influences, and into whose hands a publication of this sort may fall... it is quite
certain that it would suggest to the minds of the young of either sex, or even to persons of
more advanced years, thoughts of a most impure and libidinous character.”
2. Likely Audience Test: This test replaced the Hicklin’s Test and was based on the target
audience, not the person whose hands the book might stray onto. This was also affirmed
in Chandrakant Kalyandas Kakodar v. State of Maharashtra, wherein it was held that
 what must be considered is the impact on those who could reasonably be expected to gain
access to the publication.
3. Social Purpose and Artistic Merit: Where art and obscenity are mixed, what must be
seen is whether the artistic, literary or social merit of the work in question outweighs its
“obscene” content. This was further affirmed in the case of Ranjit D. Udheshi v. State of
Maharashtra books on medical science with intimate illustrations and photograph,
though in a sense immodest, are not considered obscene but the same illustration and
photographs collected in book form with the tendency to corrupt the minds will be
considered to be obscene.
4. Aversion Defense: Nudity and explicitness do not by themselves constitute obscenity.
Authors and film makers sometimes depict nudity not to arouse sexual desire but on the
contrary to arouse horror and revulsion in the audience against social evil being depicted.
Also affirmed in Bobby Art International v. Om Pal Singh¸ the Bandit Queen case.
5. Contemporary/National Standards: In judging as to whether a particular work is
obscene, regard must be had to contemporary mores and national standards. In India,
such standards which need to be confirmed to, are the ones denoted in the Cinematograph
Act, 1952.
6. Judging the work as whole: The publication must be judged as a whole and the
offending passages should also separately be examined so as to judge whether the
passages are so grossly obscene as are likely to deprave and corrupt.
7. Test of Ordinary Man: The test for judging a work should be that of an ordinary man of
common sense and prudence and not and “out of the ordinary or hypersensitive man.”

Pre-censorship or prior restraint

In India censorship by prior restraint is justified under the Cinematograph Act, 195z. But there
lies a heavy burden on the authorities to show that the curbs are reasonable and permissible in
law."

In K.A. Abbas v. UOI, it was held that in India, censorship of films by prior restraint is
permissible. Pre-censorship is but an aspect of censorship and bears the same relationship in
quality to the material as censorship after the motion picture has had a run. The only difference is
one of the stage at which the State interposes its regulations between the individual and his
freedom. Beyond this there is no vital difference. That censorship is prevalent all the world over
in some form or other and pre-censorship also plays a part where motion pictures are involved,
shows the desirability of censorship in this field. The Khosla Committee has given a description
generally of the regulations for censorship (including pre-censorship) obtaining in other
countries and Hunning's book deals with these topics in detail separately for each country. The
method changes, the rules are different and censorship is stricter in some places than in others,
but censorship is universal.

In R.K. Anand v. Delhi High Court, the Supreme Court held that an order of pre-censorship
would infringe the rights of the media. This was a case where a senior advocate, acting for the
defence was caught in a sting operation trying to neutralise a witness for the prosecution in the
infamous BMW hit-and-run case. Rejecting the argument that since the trial was pending, the
sting operation could have been telecast by a TV channel only after taking the permission of the
court, the court held: It would be a sad day for the court to employ the media for setting its own
house in order; and media too would certainly not relish the role of being the snoopers for the
court. Moreover, to insist that a report concerning a pending trial may be published or a sting
operation concerning a trial may be done only subject to the prior consent and permission of the
court would tanta-mount to pre-censorship of reporting of court proceedings. And this would be
plainly an infraction of the media's right of freedom of speech and expression guaranteed under
Article 19(1)(a) of the Constitution.