Semester III, Year 2

SUBJECT: CONSTITUTIONAL LAW

RIGHT TO CREATIVE FREEDOM UNDER ARTICLE 19 WHILE ANALYSING THE

CINEMATOGRAPHER (AMENDMENT) BILL, 2021
INTRODUCTION
The Constitution of India guarantees freedom of speech and expression to all citizens. It is
enshrined in Article 19(11)(a). In this article, you can read all about Article 19(1)(a) and its
provisions. A basic element of a functional democracy is to allow all citizens to participate in the
political and social processes of the country. There is ample freedom of speech, thought and
expression in all forms (verbal, written, broadcast, etc.) in a healthy democracy. Expression is a
matter of liberty and right. The liberty of thought and right to know are the sources of
expression. Free Speech is live wire of the democracy. Freedom of expression is integral to the
expansion and fulfilment of individual personality. Freedom of expression is more essential in a
democratic setup of State where people are the Sovereign rulers. Iver Jennings said, without
freedom of speech, the appeal to reason which is the basis of democracy cannot be made. Milton
in his Aeropathic says that without this freedom there can be no health in the moral and
intellectual life of either the individual or the nation.

FREEDOM OF ARTISTIC EXPRESSION

Freedom of artistic expression is the principle that an artist should be unrestrained by law or
convention in the making of his or her art. All persons enjoy the right to freedom of artistic
expression and creativity, which includes the right to freely experience and contribute to artistic
1
Constitution of India art.19 (1950).
expressions and creations, through individual or joint practice, to have access to and enjoy the
arts, and to disseminate their expressions and creations. Supreme Court in the case of
Rangarajan v. P. Jagjivan Ram2, wherein it was held that “Movie doubtless enjoys the guaranty
under Article 19(1)(a). Movie motivates thought and action and assures a high degree of
attention and retention. It makes its impact simultaneously arousing the visual and aural senses.
The combination of act and speech, sight and sound in semi-darkness of the theatre with
elimination of all distracting ideas will have an impact in the minds of spectators. In some cases,
it will have a complete and immediate influence on, and appeal for everyone who sees it. It can,
therefore, be said that the movie has unique capacity to disturb and arouse feelings. It has as
much potential for evil as it has for good. It has an equal potential to instil or cultivate violent or
good behaviour.

DRAFT BILL (CINEMATOGRAPHERS ACT, 2019)

The recent amendment to The Cinematograph Act, 19523 stirred up a storm in the film fraternity.
Not so long after the Centre released the draft Cinematograph (Amendment) Bill 2021, concerns
regarding its constitutionality started flowing, with filmmakers and actors criticizing and
slamming the bill. What used to follow earlier, under the 1952 Act, was a system where the
Central Board of Film Certification (CBFC), a body in which everyone is a government
appointee, used to have the final authority to eliminate offensive or politically subversive
content. The core of the entire legislation, Section 5B, states that any film that 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 offense” can be denied a certificate. With all
these conditions already in place, the new draft proposes a provision that would allow the
Government to order re-certification for a film already certified by the CBFC. Besides this, the
draft also proposes – penalization of piracy, grant of eternal certificates, and age-based
certification – which have gone uncriticised. One of the most common bases for imposing
censorship on films, in India is the paternalistic idea that the Indian audience is immature . This
presumption was refuted by the Delhi High Court wherein it held that a film is a work of fantasy

2
Rangarajan v. P. Jagjivan Ram 1989 SCR (2).
3
Cinematographer Act (1952).
and watching a feature film is the conscious choice of the spectator and person offended by the
content or the theme of the film is free to avoid watching the film.

THE DEATH OF CREATIVE FREEDOM

Living in a democratic country, which is not yet free from social dogmas, having the right to
artistic expression and creative freedom follows as a matter of course. Curbing this freedom,
violates not only the right of the filmmakers to provide real insights but also suppresses the
ability of the viewers to think critically and make informed decisions. Several filmmakers voiced
their concern over the proposed extra layer of censorship, particularly when there has been a
long-standing demand to do away with the existing censorship process. They are worried that the
gains made by the committees headed by Justice Mukul Mudgal and Shyam Benegal – which
recommended moving to a regime of no-snips-and-cuts – would be undone. Filmmaker Kamal
Hasaan took to Twitter and wrote, “Cinema, media and the literati cannot afford to be the three
iconic monkeys of India. Seeing, hearing, and speaking of impending evil is the only medication
against attempts to injure and debilitate democracy.”

The government has cited the much “used and abused” clause of Article 19, i.e., clause 2 dealing
with “reasonable restrictions,” to justify its revisionary powers. Over the years, the Supreme
Court and various high courts have frowned upon this tactic. The Supreme Court, in K.M.
Shankarappa v. Union of India4, proclaimed that the Union Government cannot exercise
revisional powers in respect of films that have already been certified by the CBFC. Therefore, it
follows from the above discourse that creative freedom is only an extension of the fundamental
right to freedom of speech and expression, and for the true enforcement of Article 19(1)(a),
denying creative freedom must be termed unconstitutional, for creativity can only prosper in an
unhindered environment.

MOB CENSORSHIP LEADING TO IRREPARABLE LOSSES

The dissolution of the already standing Film Appellate Tribunal through The Tribunals Reforms
(Rationalization and Conditions of Service) Ordinance, 2021, deprives the artists and filmmakers
of a redressal mechanism, particularly dealing with their field of work and making High Courts
the only institution to hear any arising dispute. Adding to this, the new power to recall CBFC
certified films would delay the production and development of the films and keep the producers

4
K.M Shankarappa v. Union of India Appeal (civil) 3106 of 1991.
at risk of losing a huge amount of capital in lieu of re-shoots, restructuring the production
process, etc. Furthermore, to allocate the budget constraints in this process, the executive team of
a film may have to remove the workforce, leading to unemployment and economic losses in the
field.

A new proviso added to Section 6 of the already enacted Cinematographers Act, 1952 states, “on
receipt of any references by the Central government in respect of a film certified for public
exhibition, on account of violation of Section 5B (1) of the Act5, the Central Government may, if
it considers it necessary so to do, direct the chairman of the board to re-examine the film”. Here,
the word “any reference” means that the Centre can invoke its powers to re-examine a film upon
a request/complaint filed by any person, no matter their political or vested interests. This may be
done without giving any explanation in writing or providing an opportunity to the filmmakers to
present their concerns. Such unchecked power can be exercised under ambiguous and sweeping
grounds of “indecency” or “public order.” This will gradually overburden the concerned
authorities and trample the creative and intellectual thinking that goes behind the making of a
film under the guise of public inclusion.

THE INTERNET AND THE ISSUE OF INTERNET CENSORSHIP IN INDIA

World Wide Web(WWW) was first proposed on a document named “Information Management:
A Proposal” in March of 1989 by Sir Tim Berners-Lee, a computer scientist in a physics
laboratory. The first web page was published at the end of 1990, upon which, the WWW was
open to a select few outside of the laboratory. The importance of free access to such technology
was a crucial part of the widespread creative use of the internet. In today’s time, the Internet is
one of the driving force of the global economy.

Globalization is at its peak with a barrage of increasing active users every year. With the increase
in active internet users, policies around the world are evolving. With the introduction of the
internet and its easy accessibility to the common population, the right to freedom of speech and
expression

Cyber censorship was first officialized when the Parliament established the Information
Technology (IT) act 6that laid down a foundation and a legal framework to regulate the use of the

5
Cinematographer Act § 5 (b) (1952).
6
The Information Technology Act, (2000).
internet for communication, trade, security and hacking. The objective of the Act is to “to
provide legal recognition for transactions carried out by means of electronic data interchange and
other means of electronic communication, commonly referred to as ―electronic commerce‖,
which involve the use of alternatives to paper-based methods of communication and storage of
information, to facilitate electronic filing of documents with the Government agencies and
further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Banker’s Books
Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected
therewith or incidental thereto.”

But by introducing various amendments and multiple rules under the Act, the government has
successfully censored speech, expression and free flow and exchange of information. In 2008, an
amendment to the Act gave power to the government to block content where it believes that such
censorship is “in the interest of sovereignty and integrity of India, defence of India, security of
the State, friendly relations with foreign States or public order or for preventing incitement to the
commission of any cognizable offence relating to above”.

Section 66A which was introduced via Information Technology (Amendment) Act, 2008
prohibited sending offensive messages online. This section was read down by the Supreme Court
in the landmark judgment of Shreya Singhal v. Union of India 7on the ground of violating 19(1)
(a) entirely and did not pass the test of reasonable restrictions under Article 19(2)8.

FILM CERTIFICATION
Movies in India as it stands now have to obtain certification before they are released in theatres.
The certificates in this respect are issued by a statutory body called the Central Board of Film
Certification (CBFC) which has been established under the Cinematographic Act of 1952.

The Act of 1952 along with the Cinematographic Rules, 1983 and the Central government
guidelines of 1991 set out the manner in which movies are to be exhibited in the country. The
categories in which the CBFC divides movies for exhibition are:

The film is suitable for unrestricted public exhibitions. i.e. fit for ‘U’ certificate.

7
Shreya Singhal v Union of India AIR 2015 SC 1523.
8
Constitution of India art.19 [2] (1950).
The film is suitable for unrestricted public exhibition but with an endorsement of caution that the
question as to whether any child below the age of twelve years may be allowed to see the film
should be considered by the parents or guardian of such child. i.e. fit for ‘UA’ certificate.

The film is suitable for public exhibition restricted to adults, i.e. fit for ‘A’ certificate.

The film is suitable 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, i.e. fit for ‘S’ certificate.

The principles guiding the CBFC in the certification of films include assessing the film from the
perspective of public order, morality, decency and defamation.

Additionally, the CBFC is also required to consider laws relating to the depiction of cigarettes
and tobacco, the use of drugs and substances, the prevention of cruelty to animals, the use of
national emblems and names and other matters of national honour.

LAWS RELATED TO CENSORSHIP

Obscenity

Watching or possessing pornographic materials is apparently legal; however distribution of such

materials is strictly banned. The Central Board of Film Certification allows release of certain
films with sexual content (labelled A-rated), which are to be shown only in restricted spaces and
to be viewed only by people of age 18 and above. India’s public television broadcaster,
Doordarshan, has aired these films at late-night time slots. Films, television shows and music
videos are prone to scene cuts or even bans, however, if any literature is banned, it is not usually
for pornographic reasons. Pornographic magazines are technically illegal, but many softcore
Indian publications are available through many news vendors, who often stock them at the
bottom of a stack of non-pornographic magazines, and make them available on request. Most
non-Indian publications (including Playboy) are usually harder to find, whether soft-core or
hardcore. Mailing pornographic magazines in India from a country where they are legal is also
illegal in India. In practice, the magazines are almost always confiscated by Customs and entered
as evidence of law-breaking, which then undergoes detailed scrutiny.

National security
The Official Secrets Act 1923 9is used for the protection of official information, mainly related to
national security.

Censorship by medium

The Indian press does not enjoy extensive freedom: in 2019, it was ranked 140 in the Press
Freedom Index, published by Reporters Without Borders. In 1975, the Indira Gandhi government
imposed censorship of press during The Emergency; the day after, the Bombay edition of The
Times of India in its obituary column carried an entry that reads, “D.E.M O’Cracy beloved
husband of T.Ruth, father of L.I.Bertie, brother of Faith, Hope and Justica expired on 26 June”.
It was removed at the end of emergency rule in March 1977.

Obscenity and defamation

In 1988, a “defamation bill” introduced by Rajiv Gandhi, but it was later withdrawn due to
strong opposition. The Supreme Court while delivering the judgement in Sportsworld case in
2014 held that “A picture of a nude/semi-nude woman … cannot per she be called obscene”.

Film

The Central Board of Film Certification (CBFC), the regulatory film body of India, regularly
orders directors to remove anything it deems offensive, including sex, nudity, violence or
subjects considered politically subversive.

According to the Supreme Court of India:

Film censorship becomes necessary because a film motivates thought and action and assures a
high degree of attention and retention as compared to the printed word. The combination of act
and speech, sight and sound in semi darkness of the theatre with elimination of all distracting
ideas will have a strong impact on the minds of the viewers and can affect emotions. Therefore,
it has as much potential for evil as it has for good and has an equal potential to instill or cultivate
violent or bad behaviour. It cannot be equated with other modes of communication. Censorship
by prior restraint is, therefore, not only desirable but also necessary.

9
Official Secrets Act (1923).
RESTRICTION: A NECESSARY OPTION?
With the increased number of means of expressions, the restrictions on the free flow of speech
have also increased. Censorship or chilling effect exists even in the absence of legal prosecution.
This comes into the picture when people choose to self-censor their speech, i.e., they choose not
to express their opinions due to the fear of being prosecuted or being a target of “heckler’s veto”.
In several cases, when interest groups that claim to be offended by books, movies, or works of
art pushed for censorship or harassed authors, the government has allowed them a “heckler’s
veto” rather than protecting those under attack. Stringent legal censorship also with the passage
of time promotes intolerance to a scale where it is not only imposed by court decrees but
physical violence.

Justice Jackson in the case of American Communications Association v. Doud10s had observed
that “thought control is a copyright of totalitarianism, and we have no claim to it. It is not the
function of our Government to keep the citizen from falling into error; it is the function of the
citizen to keep the Government from falling into error. We could justify any censorship only
when the censors are better shielded against error than the censored.” India being a democratic
republic needs to frame policies by engaging stakeholders from diverse fields, including think-
tanks, NGOs and individuals. Because if this continues to go on, the very core of democracy
would be hampered, slowly fading away from our democracy to Orwell’s Oceania, and thus
turning his fiction 1984 into reality.

The Cinematographer Amendment Bill, with its positive prerogatives of curbing privacy and
creating a check mechanism on the scalpers/black market of motion pictures, may come with a
collateral damage of fiddling with the Right to creative freedom, which might aggravate itself in
a full-blown era of censorship, cuts and biased checks.

CONCLUSION
Coupled with the abolition of the FCAT and the new restrictive OTT regulations, the Bill points
towards a regime with little to no space for public discourse and democratic dissent. It presents a
gloomy picture where the filmmakers would either have to be pro-government or risk suffering
substantial economic losses in the likely case of no certification. The bill may be deemed as an
autocratic control over various art-based platforms. The provisions of the bill put up a question

10
American Communications Association v. Doud 339 U.S. 382 (1950).
mark on the free will and choice of citizens and restricts filmmakers from exploring different
nuances of filmmaking. It is feared that, if implemented, the review process would become
political rather than professional, and the freedom to work on controversial topics would also
become more restricted than ever. Even the vehement criticism that the new OTT rules received
(which were termed to be “contrary to International Human Rights Law” by the United Nations
Special Rapporteur) did not deter the government from rolling out this Bill. However, concern
has only been voiced over the revisionary powers of the government; the remaining key
provisions – penalization of piracy, grant of eternal certificates, and age-based certification –
haven’t been criticized. Although these are well-thought amendments by the Government, the
other criticized provision as mentioned above calls for a much deeper analysis and discussion.

The following measures could be taken by the government before implementing the proposed
bill:

1. Adopting measures to strengthen the CBFC, thereby enabling it to act as a complaint

redressal body. The hue and cry following the abolition of the FCAT would also be
addressed through this measure. As a consequence, it would shift the burden from the
already over-burdened judicial institutions of our country.
2. Holding discussions and meetings with the media and entertainment industry members to
understand their grievances and, through that, deliberate on the provision regarding
revisionary powers in the amendment.
3. Creating a separate redressal body managed by the CBFC which would also act as a
redressal mechanism for all media and OTT platforms.
4. Delegating the work of addressing and appealing the problems of media and
entertainment (M&E) to a nominated member of the Rajya Sabha, who can also
formulate a committee to look further into strong-arming the redressal mechanism of the
same.
Submitted By- Yash Bhatnagar 

Second Year (Semester 3) Student, Section B (BA LL.B) 

Dr. Ram Manohar Lohiya National Law University 

Lucknow, Uttar Pradesh 

Enrollment Number: 200101157

Submitted To- Prof. A.K Tiwari

(Professor, Constitutional Law I)

Dr. Ram Manohar Lohiya National Law University

Lucknow, Uttar Pradesh

 ACKNOWLEDGMENT AND DECLARATION

I humbly submit that all the references and links used to research for this topic has been duly
acknowledged and recognized under the column of ”Bibliography”. Furthermore, this project is
for no award or degree purpose in any other institution rather than Dr. Ram Manohar Lohiya
National Law University, Lucknow and has been created for the sole purpose of academic check
in the session of 2020-21. I thank and acknowledge Prof. A.K Tiwari sir (Professor, Constitution
Law I ) for giving me a chance to research on this topic and to all the sources which turned out
to be helpful and informative during project making. I would also like to extend my gratitude
towards the research websites and researchers, articulator and illustrators who helped me in the
formation of contention between the headings and content of this project.
 BIBILIOGRAPHY

1. https://tclf.in/2021/07/12/cinematograph-amendment-bill-2021-disguised-censorship-
and-a-threat-to-creative-freedom/
2. https://thelawexpress.com/censorship-in-india
3. https://www.legalbites.in/issue-of-censorship-in-india/#:~:text=Issue%20of
%20Censorship%20in%20India%201%20I.%20Freedom,%203%20III.%20Conclusion
%3A%20Censorship%20in%20India.%20
4. https://www.lexquest.in/censorship-of-media-in-india/