The brouhaha over the treatment of Udta Punjab by the Central Board of Film Certification has again focused attention on the arbitrary use of powers available under the Cinematograph Act 1952 and Cinematograph. (Certification) Rules 1983, and the rules made therein. The circumscription of creative licence has become the norm in the past two years of the BJP government. But before dealing with the constriction of India’s liberal space by an obscurantist establishment, it may be worth examining how the process of certification/censorship plays itself out these days.
Article 19(1)(a) of the Constitution guarantees freedom of speech and expression to all citizens. There is a caveat in Article 19(2), however, that lets the State put reasonable restrictions on exercising this right. As the scope of these constraints are almost infinite, they were engrafted almost in toto in Section 5(B) of the Cinematograph Act. This virtually gives the censor board unbridled powers to refuse certification, impose arbitrary cuts, grant certificates ranging from U (universal) to S (specialised presentation). All this and more is done almost on a daily basis, supposedly to protect the sovereignty and integrity of India, security of the state, friendly relations with foreign nations, public order, decency, morality, defamation, contempt of court or even the incitement of an offence.
The power to certify a film is vested exclusively in the Centre under Article 246, entry 60 in the Union List of the Seventh Schedule. But state governments routinely misuse law and order powers and state laws promulgated under entry 33 of the State List to ban films that are granted certification by the CBFC.
A good example is the Tamil Nadu Cinemas (Regulation) Act 1955, that was invoked with Section 144 CrPC by the Tamil Nadu government to stop the screening of Kamal Hassan’s Vishwaroopam in January 2013, despite it being cleared by the censor board. Under Rule 21 of the Film Certification Rules, a producer or his nominee applies for the certification of a film. It must be vetted in 21 days. This rule is routinely violated for big banners and major producers, ostensibly in the name of stopping piracy. It is then referred to an examining committee drawn from people on the advisory panel attached to every regional centre. The examining committee recommends how a film should be certified. If the producer or CBFC chairman is not satisfied with the committee’s decision, it is referred to a revising committee. If the producer is unhappy with the revising committee’s decision, he/she can appeal to the Film Certification Appellate Tribunal, after which a writ lies to the high court, then a special leave petition to the Supreme Court.
The fundamental point is that wide, arbitrary and almost draconian powers are vested in the CBFC that can drive even a conservative filmmaker around the bend. Given the huge financial investments in play, time is of the essence, which makes a producer a virtual puppet in the hands of the board. That is the reason why allegations of corruption, malfeasance and carnal favours are often rife. A command performance to deny certification at the Centre’s behest is the easiest one-person act to perform.
If a filmmaker can navigate his/her way around this byzantine maze, state governments can always stop a film being screened there on the spurious ground of a threat to law and order, as happened in the case of Vishwaroopam in Tamil Nadu, Sadda Haq in Punjab and many other films along the way.
My experience in a former avatar with the functioning or rather malfunctioning of the CBFC convinced me that this institution should be abolished. I was trying to find a way to demolish this architecture. The opportunity came in the form of the Tamil Nadu government’s move to ban Kamal Haasan’s Vishwaroopam. Oral instructions were issued to district collectors to halt advance bookings of the film, as it would ostensibly hurt the sentiments of one community.
Despite my repeated public entreaties that this was wholly illegal, the state government wouldn’t budge. It was clear there was a standoff. While the state government was bent on using its law and order powers to curb artistic freedom, the larger question was that if every state government took this route, where would it leave the Cinematograph Act, and, more important, would filmmakers be forced to run from state secretariat to state secretariat, hat in hand, to get their films exhibited, after spending huge sums to make the movie and then get all the requisite clearances as required by the law The entire issue went far beyond the fate of just one movie.
On February 4, 2013, as the Vishwaroopam controversy was raging, I set up a committee with some of the most eminent and knowledgeable people to examine the issue. It included retired Punjab and Haryana high court chief justice Mukul Mudgal, FCAT chairman Lalit Bhasin, former CBFC chairperson Sharmila Tagore and Javed Akhtar, then an MP, and was tasked with reviewing the CBFC’s mandate and functioning, and recommend steps, including statutory changes, to enable it to deal with the needs of a changing society. This would include the process of certification, the mechanism followed by the examining and revising committees, categories of certification, existing and proposed, including any special categories for broadcasting on television channels and radio stations, and finally to review FCAT’s mandate to make it a more efficacious appellate body.
After wide consultations across the country, it submitted its report on October 9, 2013, and given that it included lawyers in addition to creative people it even drew up a model Cinematograph Bill. When the committee came to submit its report to me, the first question I asked was: have you recommended the scrapping of this whole silly censorship process masquerading as certification The chairperson, Justice Mudgul, smiled back, saying we did not know that you wanted that. I reparteed back, saying it would have been wholly inappropriate for me to impose my subjective desires over your objective consideration.
It was another matter that, left to myself, I would have repealed the Cinematograph Act lock, stock and barrel and replaced it with statutory guidelines whose violation would entail hefty pecuniary consequences.
If television can be beamed into people’s bedrooms 24x7 regulated by only a programme code and advertising code, why have a censorship mechanism for films It belongs to another time and place in history. Unlike TV, that someone may involuntarily be forced to watch, in case of a film you actually go to a theatre and buy a ticket to see a movie. There is no coercion involved in the process.
However, since it was late in the day and the process of inviting public comments and consultations with states would require time, I thought it prudent to put the whole report and the draft model bill in the public domain for people to peruse and react, hoping the next government would make it a legal reality.
The BJP-led government, however, chose to cold shoulder this and set up another panel under top filmmaker Shyam Benegal to reinvent the wheel. Given this government’s reactionary ethos, this committee was at best a tactic to divert the flak the government had been getting from the creative community over the spectre of intolerance that stalks the country today.
Coming back to Udta Punjab, the mutilation of the film is undoubtedly a command performance as the Akali-BJP government is widely seen as either complicit or at least patronising of the drugs trade in Punjab that has ruined so many innocent lives. A movie that exposes the magnitude of the horror and monstrosity of the crime perpetrated on 30 million hapless people is obviously inconvenient to the powers-that-be and therefore must be discredited as propaganda, if not banned and consigned to the dustbin. This government and their trolls are giving even Josef Goebbels a run for his money.
The fundamental problem is, however, institutional and structural. As long as the Cinematograph Act is not repealed, Udta Punjab will become the rule rather than the exception. Censorship must go, let freedom reign.
The writer is a lawyer and a former information and broadcasting minister. The views expressed are personal. Twitter handle@manishtewari