CONSTITUTIONAL LAW

A DETAILED ANALYSES OF CENSORSHIP OF FILMS IN INDIA

AND OTHER COUNTRIES.

BY

BURHANUDDIN PATANWALA (81022019035)

ROLL NO-A030
B.B.A LLB
2ND YEAR 4TH SEM

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TABLE OF CONTENTS

ABSTRACT.........................................................................................................................................3
SCOPE OF RESEARCH AND RESEARCH METHODOLOGY..................................................4
REVIEW OF LITERATURE.............................................................................................................5
CHAPTER 1........................................................................................................................................6
INTRODUCTION...............................................................................................................................6
CHAPTER 2........................................................................................................................................7
ORIGIN AND HISTORY OF FILM CENSORSHIP IN INDIA.....................................................7
CENSORSHIP OF FILMS IN INDIA...............................................................................................8
3.1)....................................................................................................................................................9
An overview of Cinematograph Act, 1952.....................................................................................9
3.2)..................................................................................................................................................10
Shyam Benegal Committee Report and The GD Khosla Report, 1969.....................................10
3.3)..................................................................................................................................................11
Landmark Judgements.................................................................................................................11
1. K.A Abbas v. Union of India.............................................................................................11
2. S.Rangarajan v. P.Jagjivan Ram and Others......................................................................14
3. K. Ganeshan v. Film Certification Appellate Tribunal......................................................14
4) Nachiketa Walhekar v. Central Board of Film Certification.............................................15
CHAPTER 4......................................................................................................................................15
CENSORSHIP OF FILMS IN OTHER COUNTRIES..................................................................15
4.1)..................................................................................................................................................16
THE U.S.........................................................................................................................................16
Joseph Burstyn, Inc. v. Wilson.................................................................................................18
4.2)..................................................................................................................................................20
Italy.................................................................................................................................................20
CHAPTER 5......................................................................................................................................21
CONCLUSION AND ANALYSES..................................................................................................21
BIBLIOGRAPHY..............................................................................................................................23

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ABSTRACT

“Censorship is telling a man, he can’t have a steak, just because a baby

can’t chew on it.”

- Mark Twain

Right to freedom of speech and expression provided by our Constitution is one of the most
important features of a democracy. Yet, at each stage, some way or the other, this right has
been restricted. Censorship of films too is a restriction on the freedom of speech and
expression of the artist that produces the films as well as each and every person involved with
the film. A bigger picture can be drawn by analysing the laws regulating censorship of films.
This research analyses the laws governing censorship of films in India as well as other
countries such as The U.S and Italy.

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SCOPE OF RESEARCH AND RESEARCH METHODOLOGY

This research paper is an analyses of the laws governing censorship in India as well as other
countries.

USA and Italy are the countries chosen for the current topic as the former boasts its First
Amendment which gives an absolute right to freedom of speech and expression. The later is a
completely separate European nation, who’s films in the 1900s have contributed or even
served as a catalyst to form important precedents in US. This too has been illustrated in this
study.

The research begins with a brief study on the origin and history of film censorship in India.
The next two chapter deals with censorship of films in India and the aforementioned
countries in a systematic way.

Methodology applied to conduct the research is of doctrinal analysis and descriptive method.
The information and data gathered is primarily of secondary nature. Collection of data has
been done from various state level and international level publications and other sources like
websites, books, journals, articles, etc.

Aims:

1) To analyse the film censorship laws prevailing in India

2) To study the film censorship laws in USA and Italy.

Research Gap- This paper does not contain a lot of material on film censorship in Italy, as the
recently film censorship has been abolished by Italy. An interesting study for other research
papers would be the jurisprudence in Italian film censorship which lead to abolishment of
censorship of films in Italy.

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REVIEW OF LITERATURE

 (Boyd, 1972) In this journal article, the author has given a detailed description of
censorship of films in India. The author has covered all the aspects of film censorship
in India Including the laws and regulation which prevailed during the British rule as
well as post-independence. The Cinematograph Act, 1952 has been thoroughly
analysed by the author with respect to it’s framework and the rules laid out by the
central government for the CBFC to abide by while judging the films. The landmark
judgment of K.A Abbas has been wonderfully and accurately presented by the author
with him analysing the judgement given by the 11th CJI Hidayatullah with respect to
the Article 19 of the Constitution. The author believed that India cannot be as modern
as it strives to be with the old traditional values, etc holding her back.
 (Hunnings, 1967) In this book, the author has analysed each and every aspect of the
English law on censorship and censorship of films too. A part of the book includes the
history of censorship laws in India.
 (Kamthan) The author has provided a detailed study of The Cinematograph act, 1952.
The current article focuses on the women’s rule on censorship and how obscenity is
associated with the body of a women. The author presents instances where the CBFC
has been a mere hypocrite in its decisions.
 (Benegal, 2016) The Shyam Benegal report is generated In order to suggest the CBFC,
a better set of protocols for the certification of films.
 (Khosla, 1969) The Khosla Committee lead by Justice Khosla submitted a report on the
present and past situation of censorship of films by the CBFC and other statutory
bodies. This report is a very lengthy report with almost everything on censorship of
films. History and progress of the Indian Censorship, Censorship of Films in India, as
well as a brief summary of all the topics in the end is included in this report.

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CHAPTER 1

INTRODUCTION

“Censorship is to art as lynching is to justice”

- Henry Louis Gates Jr.

Since ancient times, Art has been a tool to express one’s thoughts. Entertainment is just the
end result. There is always a point behind a book, painting, play etc. There is always some
structure to the contents and a lesson or a moto that one passes on. After the technological
advances in the fields of science and the most viewed form of art is the continuous play of
pictures in the form of a video or to give its proper nomenclature, Films. Films have been
used a way to express one’s thoughts since a long time and some have impacted the lives of
the mass in a positive and negative way. Ironically or not so ironically, the negative bit is
always a problem and needs fixing.

Censorship, in a layman’s language, is the fix. It can be called an invisible pair of scissors.
Although watching films in a cinema is a recent concept, Censorship has been around since
Ancient Greece.1 Restrictions were put on the Art created by people which included songs,
poems etc to curb a civil war or any threat to the kingdom. Later on, it was popularised as a
means to control.

The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021, seeks to
transfer the authority of the FCAT or the Film Certification Appellate Tribunal of having a
check over the CBFC and hearing the appeals against the decision of the CBFC, to the High
Courts.2 In the light of such developments, it is important to revisit the laws governing the
censorship in India as well as the other countries.

1
Beacon for Freedom of Expression, http://www.beaconforfreedom.org/liste.html?tid=415 (Last visited Apr.05
2021)
2
The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021, PRS Legislative Research
https://prsindia.org/billtrack/the-tribunals-reforms-rationalisation-and-conditions-of-service-bill-2021 (Last
visited, Apr 05 2021)

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CHAPTER 2

ORIGIN AND HISTORY OF FILM CENSORSHIP IN INDIA

The world is technologically far superior than it used to be a century ago, nowadays, the films
are displayed in a theatre with the help of high-tech projectors and screens. Earlier, the
chemical composition used in the manufacturing of stocks included “Nitrocellulose” and
“Camphor” which, gives rise to a violent exothermic reaction and causes which can cause fire
accidents such as the one in the year of 1897 in France where the casualties exceeded a
hundred dead attendees.3

Ever since such Incidents, rules were regulated, where licenses were needed before a film
could be released before the viewers. In this, only the technical inspection was required.
However, the contents of the actual films itself were monitored and reviewed as terms to
grant a license. In India, the production of films or motion pictures commenced after the
introduction of the film camera called “Lumiere Cinematograph” in the presidency-town of
Bombay in 1896.4 The popularity of motion pictured led to the establishments of film
theatres, although, most of the film were foreign, “Rajah Harishchandra” was the first Indian
film, which was shown in the theatres of Bombay. 5 No specific censorship law existed back
then and the censorship of film was regulated by a few unnamed boards, it can be concluded
that these boards would monitor the films for any content which could activate the provisions
of the Indian Penal Code, 1860 which criminalise the distribution and publication of obscene
content, offends one’s religious sentiments or incites sedition. 6 Formally, censorship of film
was introduced in Cinematograph Act of 1918. 7 Later with the changes made by the Board of
Film Censors in the Presidency-towns of Bombay and Madras, a code was established, which
mandated the submission of the scripts of the film prior to the production of the films. This
was not accepted by the members of the film industry. The Certification of ‘A’ and ‘UA’
based on age was introduced in the Cinematograph Act (Amendment) of 1949. Later on, The
Cinematograph Act of 1952 replaced the Act of 1918 as well as the amendments.

3
Uday Bhatia, “100 Years of Film Censorship in India”, Mint
https://www.livemint.com/Leisure/j8SzkGgRoXofpxn57F8nZP/100-years-of-film-censorship-in-India.html
(Last Updated Jul.14 2018, 8:59 AM IST).
4
Bruce Michael Boyd, Film Censorship In India : A "Reasonable Restriction" On Freedom Of Speech And
Expression, 14 JILI 501-506, 504 (1972).
5
Motion Picture Society of India, The Indian Cinematograph year book, 144 (Bombay: The Society 1938).
6
N Hunnings, Film Censors and the Law, 223-224 (London, Allen & Unwin 1967).
7
Supra Note 2 at 505.

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CHAPTER 3

CENSORSHIP OF FILMS IN INDIA

India has reportedly produced more films that any other country. 8 “Bollywood” invented by
famous author and novelist H.R.F Keating, is synonymous to the Indian Cinema. 9 The
Cinematograph Act, 1952 governs the censorship of films in India. Judicial pronouncements
as well as the reports published by the committees such as the Shyam Benegal Committee
and Khosla Committee amount to important legislations in addition to the Cinematograph
Act, 1952.

3.1)
An overview of Cinematograph Act, 1952
Section 2 of The Cinematograph Act, 1952 from now own “The Act” 10 states definitions,
however the term “Obscene” has not been defined in this section and thus The Central Board
of Film Certification which has been formed under Section 3 of The Act 11, has called films
like “Lipstick Under My Burkha” and cut a few scenes. In this regard, the judiciary has
criticized this decision of the CBFC stating that, the film has in no way shown obscenity. On
the other hand, where the truly obscene movies such as “Grand Masti” where explicit nudity
and disrespectful innuendos have been shown, are granted the Certificate of “A”.12

Section 4 of The Act13 is about the steps needed for the CBFC to examine a film, where the
concerned person shall apply for certification and the board examines the film for
certification or for disqualification. In the Case of Manohar Lal Sharma v. Sanjay Leela
Bhansali14 The Hon’ble Supreme Court of India denied a Writ Petition against the Film
“Padmavati” preventing the makers to exhibit the film in countries except India before the
CBFC examines and certifies the film.

Section 5 of The Act15, lays down the post examination step, which is, Certifying the film as:

 U- Allowed to be viewed by everyone

8
UNESCO Inst. For Statistics, Analysis Of The UIS International Survey On Feature Film Statistics 4
(2009), Http://Www.Uis.Unesco.Org/Template/Pdf/Cscl/Infosheet_No1_Cinema_En.Pdf. (Last Visited Apr
05, 2021).
9
Oxford English Dictionary, Bollywood, http://dictionary.oed.com/cgi/entry/00304190 (last visited Apr.05,
2021).
10
The Cinematograph Act,1952, § 2, No 37, Acts of Parliament, 1952 (India).
11
The Cinematograph Act,1952, § 3, No 37, Acts of Parliament, 1952 (India).
12
Dr.Manika Kamthan, Women in Films: Revisiting the Censorship Debate, 6 JCR 289, 291(2019).
13
The Cinematograph Act,1952, § 4, No 37, Acts of Parliament, 1952 (India).
14
Manohar Lal Sharma v. Sanjay Leela Bhansali, 2017 SCC Online SC 1390.
15
The Cinematograph Act,1952, § 5, No 37, Acts of Parliament, 1952 (India).

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 UA- Everyone except children who aren’t 12 years old.

 A- Only Adults can view such films. Mostly because of the sexual and violent content
shown in the movie.
 S- Can be viewed by only certain specified people or class of people.

The Conditions and guidelines followed by CBFC are given in Clause B of Section 5. These
can be summarised as:

 Obscenity- Certain films with enormous amount of sexual content or sexual violence
are disqualified. Some films where homosexuality is shown, is considered obscene
and in appropriate too.
 Internal and External Conflict- There should not be a shred of sedition or other
offences incited by the films. Although films can show the flaws of the government.
 Religion- Offensive films will not make it pass the CBFC
 Defamation: Defamation or factually wrong depiction of any living person will lead to
defamation suits or appeal of review to the CBFC.

Section 5 even lays down the option of appealing to a tribunal by grieved film-makers.

Section 7 of the Act16 states the penalties for film makers who go against the guidelines stated
in Section 5 or any such person who violates the said guidelines and restrictions. In a case
where the petioners were responsible of displaying pornographic content called “ Blue Film”
to people, while selling them tickets to the same. The appeal was to reduce their sentences
under the Probation of Offenders Act, 1958 which was declined and they were charge under
Section 7 of The Act and other IPC Sections.17

The CBFC is located in Mumbai and a chairman as well as 6 members are appointed by The
central government as per the rules set by the Government. 18 Censorship process takes place
in the regional boards and the regional and assistant regional officer appoints a committee full
of members who, as per the Central Government, are fit to measure the film’s effect on the
masses. Such Committees watch the films and on the basis of the content, certify the film.
This is decided after the discussion of all the committee members.19

16
The Cinematograph Act,1952, § 7, No 37, Acts of Parliament, 1952 (India).
17
Gita Ram v. State of Himachal Pradesh, (2013) 2 SCC (Cri) 848.
18
The Cinematograph (Censorship) Rules, 1958, published m the Gazette of India , Oct. 11, 1958, at 2, s. 3 (/),
No. 35, as amended.
19
Censorship Rules, rule 23(3) (a) (b) and (c).

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3.2)
Shyam Benegal Committee Report and The GD Khosla Report, 1969
Shyam Benegal Committee is a committee established by Ministry of Information and
Broadcasting (MIB) to suggest guidelines and norms to be followed by the CBFC when it
comes to certifying films for public exhibition. Considering the need to improvise the
certification rules and in order to ensure the process of certifying films is not ultra vires to the
Constitution, The Committee came up with many recommendations. 20 The guidelines can be
summarised as:

 The rights owner of the film needs to give his/her consent before any changed are
made to the films.
 Certification by the CBFC should act like a disclaimer to the audience to warn what
the film might content and not as a “moral compass”.
 Further categorization of “UA” into “UA 12+” and “UA 15+” as certain films are
meant to be viewed by the current generation of teenagers.21
 Replacing the current guidelines with different categories of guidelines where one is
universal and other should be based on the theme of the films.
 Enabling the owner to apply for recertification as only “U” rated films are allowed to
be broadcasted on TV, which makes a drastic difference in the revenue of the film.22
 The Categorization of films should not have an influence on the entertainment tax
imposed by the state.23

The Khosla Committee led by Justice GD Khosla submitted a 206 pages long report to
suggest codes and norms for a new framework of the CBFC and no interference from the
Central Government. The report included the censorship laws in other countries, the impact
of films on the audience based on the human sensitivity and the constitutionality of
censorship itself. The most important suggestion of the report was that the Central
Government’s interference with its different panels at each stage is unnecessary and despotic.
The CBFC should decide the rules for certification and censorship themselves.24

20
Shyam Benegal Committee Report at 6.
21
Id at 10.
22
Id at 16.
23
Id at 20.
24
Khosla Report.

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3.3)
Landmark Judgements
1. K.A Abbas v. Union of India25
The film titled “A Tale of Four Cities” or “Char Shaher Ek Kahani” is produced by Khwaja
Ahmed Abbas, A former member of the Khosla Committee, journalist, play-wright, film
producer and the petitioner in the current case. This film tries to convey a social message by
displaying the difference in the lifestyle of the rich and poor living in the cities of Calcutta,
Bombay, Madras and Delhi. The film contains many scenes where prostitution is shown, a
minute long scene contains the red-light district of Mumbai, in which pimps are shown
snatching money from the sex-workers wearing short clothes. This theme focuses on
depicting the exploitation of women by indecent men. The petitioner applied for a “U”
certificate however, the appeal was rejected by the regional officer and the short documentary
was awarded a “A” certificate. The producer thus appealed to the Central Government and
they decided to grant a “U” certificate condition to which Abbas needs to cut the scenes
showing the red-light area. Aggrieved by the same, the petitioner appealed to the Supreme
Court of India.

The following are the issues raised by the petitioner.

1) Pre-censorship by the authorities is ultra vires to the freedom of speech and

expression provided by The Constitution of India.
2) Arbitrary decisions made by the censors must be precluded from the principles on
the basis of which pre-censorship might be considered.
3) The Censors should provide with a decision regarding the certification and
censorship of the films within a definite, reasonable and fixed time limit.
4) The Tribunals should be the last straw for the film owners/producers to approach
to and thus the jurisdiction should be switched from the central government to the
tribunals/court of law.

The 11th Chief Justice of India Mohammed Hidayatullah delivered the judgement along with
a 5-judge bench.

The last two issued raised by the petitioner were accepted by the Solicitor-General and thus
were exempted by the court. A chart was shown to the court regarding the time taken by the

25
K.A Abbas v. Union of India, A.I.R. 1971 S.C. 481.

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censors and thus the court decided that aside from a few exceptions, the time taken was
unreasonable. After dwelling and discussing about the history, rules, framework and process
of censorship of films in India, The CJ held that pre-censorship is constitutionally valid and
with this regard he presented two premises. 1) pre-censorship is similar to other mode of
censorship with the difference only being the stage of government’s regulation being
interposed between one’s freedom. 2) Motion Pictures should not be put into the same
category as other modes and form of art and expression as the effect the former has on a
human mind is more intense than the latter.

The court then addressed the question, “whether films require any censorship at all”. The
court with respected to the aforementioned, reviewed some of the landmark judgements of
the U.S courts on film censorship and the English law on Obscenity. It was held that The
Indian Constitution in article 19(2) has clearly put some restrictions on the right to freedom
of speech and expression unlike the First Amendment of USA’s Constitution. The Court thus
held that the American Courts do not have any validity in this regard and more so cause the
decisions are informal. CJ Hidayatullah stated:

“Social interest of the people, override individual freedom”26

In response to the petitioner’s argument that separate rules of censorship are invalid as
according to the void for vagueness doctrine, these rules are too vague to be constitutionally
valid, The court said that the aforesaid doctrine is not applicable to the restrictions on one’s
fundamental right. However, the court came up with a test to the “boundless sea of
uncertainty standard”. If a rational individual can comprehend the meaning of rape as per the
Indian penal code, then that individual can comprehend the meaning of expressions such as
“immoral traffic in woman”, “Scenes suggestive of immorality”, “traffic and use of drugs”.
Thus, the members of the CBFC, being rational can understand the difference between these
terms as well. Thus, the directions by the Central government are unconstitutionally invalid
of vagueness.

The courts directed the board to use the test for obscenity as fixed by the court in the decision
of Ranjit Udeshi v. State of Maharashtra 27 This case was regarding an “obscene” book. The
following are the principles of the test.

26
Id at 495.
27
Ranjit Udeshi v. State of Maharashtra, 1965 AIR 881, 1965 SCR (1) 65.

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1) Sex and nudity is not synonymous to Obscenity and thus the bits of a film
involving sex and nudity cannot qualify as evidence unless there is not anything
more to it.
2) A film as a whole must be considered while calling it obscene. However, if it is
considered obscene because of a mere part, then that part should be so “gross” that
the said part will inevitably corrupt the minds of those who view the part.
3) The art and obscenity, if mixed, the art must be overwhelming enough to
overshadow the obscenity.
4) If the bit which involves “propagation of ideas, opinions and information of public
interest or profit” obscenity cannot be determined in those bits.
5) Obscenity must always involve a preponderating social issue or profit.

2. S.Rangarajan v. P.Jagjivan Ram and Others28

This case is about a film called “Ore Oru Gramathile” and its certification meant for all
audiences which was revoked by Madras High Court. This film is about a Brahmin girl who
becomes an IAS officer through admission to a college by the way of admitting a false caste
certificate to get reservation. The “tehsildar” who helps her, dies and later on when she works
along with her father for the betterment of the society, she touches many hearts and gains a
lot of support. The tehsildar’s nephew who knows about her scam, complains to the court
where the rest of the drama is played out and because of the support of the public, they are
acquitted.

A very important point raised by the counsel representing the petitioner, which is to counter
the claims of state that the film is criticizing government policy of Reservation and some
instances are offensive to the caste of Brahmins, is:

“The effect of the film should not be rested on isolated passages disregarding the main theme
and its message. The film should be judged in its entirety from the point of its overall impact
on the public.”

The Apex court in its judgement has stated that, the content of the film is mere a suggestion
that the Government policy of Reservation is bad and it would be way better that the policy
would be a reflect of the economic and financial status of the public. In no way does the film
promote the idea of overthrowing the government or any seditious elements. The film does
not violate the constitution. One is always allowed to advocate one’s views and not letting
28
S.Rangarajan v. P.Jagjivan Ram, , (1989) 2 S.C.C. 574.

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one do so is against the values of our constitution. The state cannot disapprove a film and
restrict one’s right to expression because of a few threats and it is the state’s duty to maintain
peace and order. Thus, the appeal stands and the judgement of the Madras High Court is
quashed.

3. K. Ganeshan v. Film Certification Appellate Tribunal29

The current case is regarding the certification and exhibition of the film “Porkalathil Oru
Poo” This film is based on Mrs. Isai Priya who was an LTTE journalist and she was
kidnapped from her home by the Sri-Lankan army and gangraped. She died, and her daughter
died out of starvation. The film maker approached the CBFC to grant a certification which
was rejected on the basis of too much violence, a 20 minute-long clip of gangrape and
endangering India’s relationship with foreign countries which is a clear violation of The
Cinematograph Act, 1952. Thus, aggrieved by the decision of the CBFC, the petitioner has
appealed to the High Court of Madras.

Justice T.S Sivagnanam upheld the decision of the CBFC. The court rejects the argument of
respondent that the circumstances are different than 2009. The court stated that the personal
life of Mrs. Priya and her daughter, their tragedy, a 20 minute long scene of gangrape as well
as well the portrayal of the Sri-Lankan Government is negative light utterly goes against the
restrictions states in the article 19(2) of The Constitution.

4) Nachiketa Walhekar v. Central Board of Film Certification.30

In this, The qualification of the film “An Insignificant Man” by the CBFC has been
challenged by the petitioner on the grounds that is depicts him in a defaming way and thus
violates his rights stated in article 14 and 21 of the Indian Constitution. The petitioner is a
politician who spilled ink on the Chief Minister of Delhi, Arvind Kejriwal. A scene has been
showed in the film which is based on Mr. Kejriwal, where a man spills ink on the main
character (Mr. Kejriwal) The Apex Court dismissed this appeal stating,

“A thought-provoking film should never mean that it has to be didactic or in any way
puritanical.”

29
K. Ganeshan v. Film Certification Appellate Tribunal, 2016 SCC OnLine Mad 9355.
30
Nachiketa Walhekar v. Central Board Of Film Certification, (2018) 1 Supreme Court Cases 778.

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Smoking in films were supposed to be completely censored too. 31 However, the film makers
are allowed to show the characters smoking in films with statutory warnings alongside.32

CHAPTER 4

CENSORSHIP OF FILMS IN OTHER COUNTRIES

4.1)
THE U.S
“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the government for a redress of grievances.”33

Although, the term “congress” in the aforesaid section of the First amendment includes all the
government agencies and does not include any private entity or private individual, thus the
First Amendment of the U.S Constitution protects its people from any sanction imposed by
the government based on what they express through either speech or any other form of
expression or symbolic expression. However, under some circumstances, the government can
restrict free-speech, the following are some examples of the above.

 Defamatory nature: Speech or expression would not be protected under the ambit of
the First Amendment if it is of defamatory nature, which is, the statement is false and
the person who said or expressed the statement was fully aware of the nature of the
statement.34
 Threats: a speech full of threats to commit a crime is punishable.35
 Child pornography: acts/materials involving child pornography are not protected
under the First Amendment.36

31
The Cigarettes And Other Tobacco Products (Prohibition of Advertisement And Regulation Of Trade And
Commerce, Production, Supply And Distribution) Act, 2003, §3, No.34, Acts of Parliament, 2003(India).
32
J. Venkatesan, Smoking Scenes to be Allowed in Movies with Statutory Warning, Court Told, The Hindu (Last
Updated Jul. 08, 2016 19:41 IST) (Last Visited Apr.10,2021).
33
U.S. Const. amend. I.
34
New York Times v. Sullivan, 376 U.S. 254 (1964).
35
Watts v. United States, 394 U.S. 705 (1969).
36
New York v. Ferber, 458 U.S. 747 (1982).

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Films are another mode of expression and is protected under the First Amendment. However,
films in America too have been subjected to censorship since decades. 37 The Supreme Court
of America refused to acknowledge films as art in the early 1900s. 38 The Central is not
involved in the censorship of films, The Hays Code, The Production Administration Code
governed by the Motion Picture Producers and Distributors of America (MPPDA) and State
Censorship in four States, Ohio, being one of them.39

Thomas Edison, in 1896 produced a film titled “The Kiss”. Considered “a loud thump” which
attracted the attention of authorities towards motion pictures. 40 The Main Characters kissed
each other 18 seconds and thus the film was called “disgusting” by viewers and journalists. 41
The first proper censorship law was passed in the form of an ordinance, which delegated the
power to censor films by reviewing them to the Police Commissioner, by the city of Illinois,
Chicago.42

In the case of Block v. Chicago, the censorship law was tried in the court of law, where the
supreme court upheld the censorship by the state stating that the grounds of obscenity and
immorality are not vague. The above was delivered by The Chief Justice (Then) Justice
Cartwright.43

Later on, The State of Pennsylvania became the first state who, passed a law whose limit
extended to the whole state of Pennsylvania. Justice Breitinger was the one who introduced
this bill.44

The State of Ohio established a censorship board, who had complete power to censor,
approve, refuse to screen, any films shown or seeking approval for the same, in the State of
Ohio, later on, in the case of Mutual Film Corp v. Industrial Commission of Ohio, 45 the
petitioner in thus sued the respondent for violating the First Amendment. However, the
Supreme Court in this case commented on the nature of films calling it a “business, pure and
37
The Khosla Committee Report.
38
K Hunt, The End of American Film Censorship, JSTOR Daily https://daily.jstor.org/end-american-film-
censorship/ (Last Visited Apr 15, 2021).
39
The Khosla Committee Report at 33.
40
Supra Note 36.
41
Fire, Thomas Edison Distributes the First Cinematic Kiss, Fire https://www.thefire.org/thomas-edison-
distributes-the-first-cinematic-kiss/ (Last visited Apr. 15, 2021).
42
Fire, Chicago and Detroit Give Police Commissioner the Power to Censor, Fire
https://www.thefire.org/chicago-and-detroit-give-police-commissioner-the-power-to-censor/ (Last visited Apr.
15, 2021).
43
Block v. City of Chicago, 239 Ill. 251 (1909).
44
Fire, Pennsylvania Adopts the First Statewide Censorship Law, Fire, https://www.thefire.org/pennsylvania-
adopts-the-first-statewide-censorship-law/ (Last visited Apr. 15, 2021).
45
Mutual Film Corp. v. Industrial Comm'n of Ohio, 236 U.S. 230 (1915).

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simple”46 and thus they would not be considered as an element of freedom of speech and
expression under The First Amendment.47

Later on with, the introduction of the Hays Code drafted by a Catholic Priest, the film
industry were aggrieved by the 19 page long rule book and thus a group of powerful film
makers who owned theatres as well as production houses, established the Motion Picture
Producers and Distributors of America (MPPDA), which later on established the PCA
(Production Code Administration).48 The system was simple, the producers would have to
compulsorily submit the script of the movies to the PCA and they would review the contents
of the film. Then, it would award the film a seal or would not, on the basis of the following.49

 The scenes involving murder and similar crimes must be portrayed with caution.
 “Evil” and “Wrong doings”, or the activities synonymous to either of them must not
be justified.
 The scenes where minors are shown committing crimes must be portrayed with
caution and restraint.
 Explicit and detailed view of brutality and violence must not be present.
 Sex scenes and nudity must not be so extreme as to justify illicit relationships as well
as fetishes, etc that are indecent.
 Unnecessary Obscenity, Profanity must not be displayed.
 Speech or Expression outrightly demeaning religion, race, national groups will not be
permitted.
 Animals must not be harmed in the films and neither shall pointless cruelty towards
the same will be permitted.

The above Code prevailed for a while. However, things changed with the introduction of The
Italian Film “The Miracle” in The U.S by Joseph Burstyn.

Joseph Burstyn, Inc. v. Wilson.50

The petitioner in this case, Mr. Joseph Burstyn, being a businessman that deals in importing
foreign films, procured the licence for screening of the Italian film, “The Miracle” in New
York. The film depicts the story of a poor girl who tends goats on a mountain. She meets a

46
Id at 236.
47
Supra Note 43.
48
Supra Note 36.
49
Supra Note 35 at 35.
50
Joseph Burstyn, Inc v. Wilson, (1951) 343 U.S. 495

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man passing by and believes that he is St. Joseph. She asks him to ascend her to heaven. The
man offers bread and wine to the girl which makes her intoxicated. The next scene depicts the
man raping the girl and when she wakes up, she finds herself to be pregnant. She is scorned at
and thrown out of the town. The last scene is her giving birth to a child in an abandoned,
empty church.

The New York City Commissioner of license, after viewing the film, rescinded the license
and barred the exhibition and screening of the movie, the grounds being, the movie was
“Sacrilegious”. The petitioner appealed in the NY Court of Appeals, where the court upheld
the decision of the Commissioner, stating:

“No religion, as that word is understood by the ordinary, reasonable person, shall be treated
with contempt, mockery, scorn and ridicule.”

The Petitioner later appealed to The Supreme Court, where the table were turned.

The Supreme Court held that the motion pictures are categorized as a form of expression and
speech under the freedom of speech and expression, thus they are protected under the ambit
of The First Amendment. The Court reversed the decision of the NY Court of appeals and
struck down the statue of censorship as unconstitutional. The Court stated the following with
respect to the above decision.

“The statute involved here does not seek to punish, as a past offense, speech or writing
falling within the permissible scope of subsequent punishment. On the contrary, New York
(State) requires that permission to communicate ideas be obtained in advance from state
officials who judge the content of words and pictures sought to be communicated. This Court
recognised many years ago that such a previous restraint is a form of infringement upon
freedom of expression to be especially condemned.”

The Court however clarified that the burden lies on the state to justify the prior-restrains on
the individual’s/organization’s freedom of speech and expression.

After the Burstyn Decision, The judiciary went through a rollercoaster of perplexing cases
where, a constant tug of war of reversing the Burstyn Decision, as well as upholding,
prevailed. One such example is the case of Times Film Corp v. Chicago. 51 Where the court
stated:

51
Times Film Corp. v. Chicago, (1961) 365 U.S. 43, 75.

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“The Phrase ‘prior restraint’ is not a self-wielding sword, nor can it serve as a talismanic
test.”

The PCA became irrelevant after the introduction of a new MPAA rating system.52

4.2)
Italy
In Italy, Article 21(1) of The Italian Constitution States, “All shall have the right to express
their thoughts freely by speech, in writing, and by all other means of communication” 53 and
Article 21(6) states, “Printed publications, performances, and all other exhibits offensive to
public morality shall be forbidden. The law shall lay down proper provisions for preventing
and repressing all violations.”54Thus as per Sub-section (6), freedom of speech and
expression can be restricted. In Italy, The Bodies governing the censorship of Films can be
divided into 3 organizations viz:55

1) The First Grade Commission.

2) The Second Grade Commission.
3) The Council of States.

The First Grade Commission is further categorized into sections depending upon the work at
hand, that is, the total number of films to be viewed for certification or approved for
screening and exhibition. The total number of 7 members in each section which is the entire
capacity of the section, is appointed by the Ministry of Tourism and Entertainment. The
Chairman must be a judicial officer, who’s rank is at least that of a High Court Judge. The
following is the criteria for the rest of the members. 3 members must include
permanent/temporary University professors, each must teach one of the following, law,
pedagogy and psychology. The other three must be from the 3 main organization of the film
industry. The members hold office for a duration of 2 years.56

The power of censorship lies with the members, where no appeal can arise once the film is
approved. The hierarchy of the bodies is with the Council of States at the top and The First
commission at the bottom. An aggrieved person can appeal accordingly.

52
Supra Note 36.
53
IT. Const. Article 21.
54
Id.
55
Supra note 22 at 42.
56
Id.

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On 5th April 2021, the Italian Minister of Culture, Dario Franceschini abolished the
censorship laws, which have been placed and followed for over a century.57

CHAPTER 5

CONCLUSION AND ANALYSES

Censorship of any sort of expression or speech is clearly a restraint on the freedom of speech
and expression granted by the laws prevailing throughout the world. Each Country has its
own rules, statutes, etc governing the censorship of films in their respective territory and
ironically the territories of other nations as well, for example, the government not allowing
the exhibition of a film filled with slurs towards a particular set of people residing in a nation,
in any other countries including theirs, on the basis of “Foreign relations”. “There is always a
catch” the catch on freedom of speech and expression are the restraints. These restraints are
filled with logically valid, yet, vague conditions.

In India, The K.A Abbas case is the most important judgement regarding the censorship of
films in India. Although, CJ Hidayatullah upheld the two, very important issues raised by
Abbas regarding the constant interference by the Central Governments and tedious as well as
long duration of time taken by the CBFC and the Centre to review the film for certification
and approval of censorship. The period of time taken can be justified due to “reasonable
circumstances”. The court failed to define these reasonable circumstances and even while
promising no interference by the Central Government, the court just conveyed their opinions
rather than a verdict. Leaving a scope for interference by the Government.

The Supreme Court held that pre-censorship is not unconstitutional and the reason being the
affect a film has on the public is way more intense than any other form of art. Further
clarifying the same, the CJ said that films cause “dishonesty, gambling, etc.” among the
masses. However, failed to explain the reason for the same.

The Court laid down a test to determine if the film is truly obscene or not, these tests seem
vague with just the suppression of sexual content, without realizing that subtleness of a thing
often leads to curiosity of the same. This begs the question as to how films such as
“Mastizade” which are clearly obscene get through the certification norms of the CBFC.
57
Carolyn DeVivo, Italy Ends Film Censorship, The Independent Magazine
https://independent-magazine.org/2021/04/29/italy-ends-film-censorship/ (Last visited, Apr. 19 2021).

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The Abbas case however did have some positive effect on the way, films are judged by the
Tribunals and the courts. Which can be noticed in the judgements of the case laws mentioned
in this study. Modernization seems to be the only solution to the issue of Censorship in India.

Censorship in America goes way back. The laws in the US are perplexing because of the non-
uniformity of statutes in different states. The Burstyn case is a mile stone for the censorship
of any kind prevailing in the world.

The American and Italian system of establishing a committee, consisting of film makers,
producers themselves and handing them the task to set rules and norms regarding the
censorship of films must be adopted by India and other countries. Although, Italy managed to
abolish Censorship of Films completely, which is a rather bold move by the Nation.

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BIBLIOGRAPHY

Books

 Motion Picture Society of India, The Indian Cinematograph year book, 144 (Bombay:
The Society 1938).
 N Hunnings, Film Censors and the Law, 223-224 (London, Allen & Unwin 1967).

Journal Articles

 Bruce Michael Boyd, Film Censorship In India : A "Reasonable Restriction" On

Freedom Of Speech And Expression, 14 JILI 501-506, 504 (1972).
 Dr.Manika Kamthan, Women in Films: Revisiting the Censorship Debate, 6 JCR 289,
291(2019).

Internet Citations

 The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021, PRS
Legislative Research https://prsindia.org/billtrack/the-tribunals-reforms-
rationalisation-and-conditions-of-service-bill-2021 .
 Uday Bhatia, “100 Years of Film Censorship in India”, Mint
https://www.livemint.com/Leisure/j8SzkGgRoXofpxn57F8nZP/100-years-of-film-
censorship-in-India.html
 UNESCO Inst. For Statistics, Analysis Of The UIS International Survey On Feature
Film Statistics 4 (2009),
Http://Www.Uis.Unesco.Org/Template/Pdf/Cscl/Infosheet_No1_Cinema_En.Pdf.
 Oxford English Dictionary, Bollywood, http://dictionary.oed.com/cgi/entry/00304190
(last visited Apr.05, 2021).
 K Hunt, The End of American Film Censorship, JSTOR Daily
https://daily.jstor.org/end-american-film-censorship/
 Fire, Thomas Edison Distributes the First Cinematic Kiss, Fire
https://www.thefire.org/thomas-edison-distributes-the-first-cinematic-kiss/

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 Fire, Chicago and Detroit Give Police Commissioner the Power to Censor, Fire
https://www.thefire.org/chicago-and-detroit-give-police-commissioner-the-power-to-
censor/
 Fire, Pennsylvania Adopts the First Statewide Censorship Law, Fire,
https://www.thefire.org/pennsylvania-adopts-the-first-statewide-censorship-law/
 Carolyn DeVivo, Italy Ends Film Censorship, The Independent Magazine
https://independent-magazine.org/2021/04/29/italy-ends-film-censorship/

Statutes

 The Cinematograph Act, 1952.

 The Indian Constitution.
 The U.S Constitution.
 The Italian Constitution.

Case laws

1) Manohar Lal Sharma v. Sanjay Leela Bhansali, 2017 SCC Online SC 1390.
2) Gita Ram v. State of Himachal Pradesh, (2013) 2 SCC (Cri) 848.
3) K.A Abbas v. Union of India, A.I.R. 1971 S.C. 481.
4) Ranjit Udeshi v. State of Maharashtra, 1965 AIR 881, 1965 SCR (1) 65.
5) S.Rangarajan v. P.Jagjivan Ram, , (1989) 2 S.C.C. 574.
6) K. Ganeshan v. Film Certification Appellate Tribunal, 2016 SCC OnLine Mad
9355.
7) Nachiketa Walhekar v. Central Board Of Film Certification, (2018) 1 Supreme
Court Cases 778
8) New York Times v. Sullivan, 376 U.S. 254 (1964).
9) Watts v. United States, 394 U.S. 705 (1969).
10) New York v. Ferber, 458 U.S. 747 (1982).
11) Block v. City of Chicago, 239 Ill. 251 (1909).
12) Mutual Film Corp. v. Industrial Comm'n of Ohio, 236 U.S. 230 (1915).
13) Joseph Burstyn, Inc v. Wilson, (1951) 343 U.S. 495
14) Times Film Corp. v. Chicago, (1961) 365 U.S. 43, 75.

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