By A.G. Noorani
KHWAJA Ahmad Abbas rendered good service to the film industry 40 years ago. He won from the Supreme Court of India a ruling on film censorship on Sept 24, 1970, which is relevant to both Pakistan and India.
The fundamental right to freedom of speech and expression is almost identically worded in their constitutions. The court ruled implicitly that it applied to cinematograph films as well. A Tale of Four Cities
Abbas had produced a documentary film called which purported to contrast the luxurious life of the rich in the four cities of Mumbai, Kolkata, Chennai and Delhi with the squalor and poverty of their poor ones. He applied to the Board of Film Censors for a certificate for unrestricted exhibition of the film. The board gave one for exhibition restricted to adults. He appealed to the central government which agreed to certify the film for unrestricted exhibition – provided he made some cuts.
He refused to do so and went to the Supreme Court, pitching his case high. Pre-censorship was a violation of the fundamental right. The court rejected the plea for sound reasons. “The treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism) and its coordination of the visual and usual senses.”
The two real issues were how far can the restrictions be imposed and who was to decide them. The Government of India conceded two of Abbas`s pleas; namely the need for a reasonable time limit for the censorship authorities to take a decision and that appeal against their decision should lie not with the government but with “an independent tribunal”. Forty years later, such a tribunal still does not exist.
The court also upheld Abbas`s plea that censorship must be exercised “on very definite principles which leave no room for arbitrary action”. Chief Justice M. Hidayatullah took one look at the `directions` given to the censors by bureaucrats and deplored “a total absence of any direction which would tend to preserve art and promote it. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and this appears to be completely forgotten”.
He added: “Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom.” But the censorship code must reflect also the norms of society so that no offence is wantonly given. independent
It is doubtful whether India`s censorship code meets these tests. What is not arguable is that, contrary to the assurances given in 1970, no tribunal has yet been set up. The much-amended Cinematograph Act, 1952, sets up a regime which is utterly unconstitutional. There is a Board of Film Certification (BFC) with a full-time executive chairman and between 12 and 25 members. He holds office “during the pleasure of the central government” though a three-year term is prescribed. This pattern of a nominal term of office but its actual continuance only “during the pleasure” of the Information & Broadcasting Ministry is repeated at all the other tiers, the advisory panels and, incredibly, even the tribunal.
Advisory panels of public figures are set up at regional centres. A film is first viewed by an examining committee comprising four members of the advisory panel plus an official. not more than four other members
On receipt of its report, the chairman may, either of his own accord or on “the request of the applicant”, refer the film to a revising committee comprising the chairman and nine members either from the board or members of the panel other than the ones who served on the examining committee.Appeals lie to an appellate tribunal which comprises besides its chairman . He must be either a retired high court judge or Â“a person who is qualified to be a judge of a high court”.
The chairman and members “hold office during the pleasure of the central government”, though they have a three-year term.
The government enjoys unbridled revisional powers which it can exercise “at any stage” in relation to any film though its fate has already been decided by the board or even by the tribunal. No reasons need be disclosed. It can cancel the certificate altogether. It is empowered to give directions setting out the principles for the guidance of the censors.
It is a fraud on the undertaking given to the Supreme Court in 1970. Tersely put, no system of film censorships can be constitutionally valid unless it provides clear sensible principles for the censors to follow; they must enjoy secured autonomy; the tribunal which hears appeals against their decisions must be truly independent; and the government`s powers to override the tribunal`s decision must be limited to extreme cases.