Amity University Lucknow Campus

2020-2021

Project on the topic

“A Case Comment on K.A. Abbas v. Union Of India & Anr. (AIR 1971 SC 481)

AND

Moving from Hicklin Test of Obscenity to the Community Standards Test in

India”

For the subject

{Media Rights and Regulation in the Constitutional Framework}

Submitted to: Submitted by:

Dr. Jyoti Yadav Margaret Rose

Assistant Professor (Law) LLM- 2nd Semester

Amity University Enroll- A8101820110

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 Table of Contents

 Introduction…………………………………………………………….(3)
 What is Judicial Activism………………………………………………(4)
 Contemporary scenario of the Judicial Activism and Over reach…….(5)
 Perils of the judicial over reach and its probable solutions……………(8)
 Drawing a line between judicial activism and judicial over reach……..(11)
 Conclusion……………………………………………………………….(13)
 Bibliography……………………………………………………………...
(13)

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 INTRODUCTION
Article 19 (1) (a) of the Constitution guarantees freedom of speech and expression which brings
in to its contours the freedom of the press. Films as a medium of expression also are put in the
same footing and accordingly granted the equal status. Both the press and films are considered as
strong mediums of communication. Both the mediums cater to the needs of a vast number of
people. Thus the films and the press enjoy the same status and right so far as constitutional
freedom relating to expression of ideas and spreading the messages are concerned. But when a
comparison comes the press enjoys a bit more freedom because the films are subject to
censorship as per the provision of existing law. Press is immune from such censorship.
Immediately after independence attempts were made to curb the media freedom but with
interference by the judiciary such attempts were negated. The films are treated differently from
the press so far as pre-censorship or censorship is concerned. It is natural that a difference of
opinion should be there regarding the question why censorship of films and not the press. The
apex Court has tried to find out an answer to this through various judgments. The present case is
one of the first attempts made by the judiciary to go in to the crux of the matter and arrive at a
conclusion.

We are in the 21st Century which saw certain scientific and innovative innovations in the field of
literature, science, technology and other related fields. In fact we carried on this process of
progress which the society witnessed in the later part of the 20th century. After hard struggles for
freedom and in the era of independence, we marched side by side with the developed and
developing countries and had left a mark for ourselves. We have contributed significantly to the
all-round development of the country in almost all the fields. Art and literature is one such area
where perhaps no other country could show the development like we contributed. From the very
ancient times we were known for our culture, for our art and literature and for our religious
developments and contributions. Films which form a very basic part of the art and literature also
saw dramatic developments. In the meantime Indian cinema has completed hundred years of its
existence and going strong in spreading the message of rich cultural, social, economic and
political heritage of this great country. Film is a medium which touches the minds of the millions
of people by spreading its base both in rural and urban areas. Contribution of Indian cinema in
the growth and development of Indian society is outstanding and unparallel. It is an established

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fact that the Constitution of India guarantees a bunch of rights to the citizens. These rights also
include certain fundamental freedoms. So far as films are concerned, any individual is at liberty
to make a film and exhibit it anywhere in India. But like other freedoms, this freedom is also not
absolute. It is also subject to certain restrictions as mentioned in our Constitution. We also have a
specific law to see that the film adheres to the norms prescribed by it before it gets approval for
public viewing.

But as compared to the freedom guaranteed to the films, the Press enjoys a bit more because the
film is subject to censorship as provided in the Cinematograph Act, 1952. Press is immune from
such censorship although immediately after independence and thereafter attempts were made by
the Government to impose certain restrictions on the Press, the Supreme Court negated all such
attempts. The films are treated differently from the Press so far as pre-censorship or censorship is
concerned. Therefore, a difference of opinion persists in the academic circles why censorship for
films and not for the Press. The Supreme Court has tried to a great extent to solve this issue. Let
us discuss both the aspects separately and also the provisions laid down in the legislation.

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 Concept of Censorship of Films
Films are considered as a great medium of communication with the people. With the
development and progress of the society and also with the progress in the field of science and
technology the films have undergone a sea change and by adopting all the available technologies
have been able to reach the masses and also significantly contributed to the social and cultural
development of the country. In this way the films are equated with the Press as Press is also
considered as a great medium of communication. Both the films and the Press enjoy the same
status and right so far as constitutional freedom relating to expression of ideas and spreading of
ideas and messages are concerned.

As is known Article 19(1)(a) of the Constitution guarantees freedom of speech and expression
which is extended to the Press also. Therefore, both these mediums are regulated under this
provision of the Constitution. Simultaneously as these freedoms are not absolute and subject to
constitutional restrictions, both these mediums are also to adhere to this. As mentioned above,
we have the Cinematograph Act, 1952 to see the films fulfill the norms prescribed by the law.

The Act provides for the establishment of a 'Central Board of Film Certification', the regulatory
body for films in India to issue the certificate to the makers of the film for public exhibition. As
per the provision of the law, the Board after examining the film or having it examined could

(a) sanction the film for unrestricted public exhibition;

(b) sanction the film for public exhibition restricted to adults;

(c) direct such excisions and modifications in the film before sanctioning the film to any
unrestricted public exhibition or for public exhibition restricted to adults; and

(d) refuse to sanction the film for public exhibition.

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