LAW AGAINST CULTURE

In a Case of CinematicExpression

Indian Culture is one of the richest cultures of the entire world. It is deep-rooted in the mythology, philosophy, sentiments, beliefs and faith of various sects and religions followed by millions of people across the Indian land. India being a Democratic State, every individual is free to practice and speak out their beliefs and views.

Cinema and right to cinematic expression has always been a big bone of contention amongst the activists of different sects. This is because at times the filmmakers tend to surpass the limits of the norms and rules set by the society, which are made by the society keeping in mind the essence of the Indian Culture.

For the purpose of protecting culture and society, the Cinematograph Act, 1952, was passed with provisions for a certification of films for exhibitions by means of Cinematograph. But this body has often been challenged for imposing unnecessary taboos under the garb of protecting culture.   

What needs to be done is to strike a balance between creativity and protection of culture, where people have the prerogative of deciding what they want to see?

Obscenity and Society

The test of obscenity may be flexible because society can never be static. Conceptions of decency and morality may differ from place to place, from time to time and from people to people.

The test must evidently be of a general character but the standards may change from case to case depending upon facts and circumstances. In the case of a literary work treating with sex and nudity in art the literature may not be regarded as evidence of obscenity without something more. It may also have to be tested in the light of freedom of speech and expression guaranteed under the Constitution of India , which is evidently subject to reasonable restrictions in the interests of the sovereignty and integrity of India, public order, decency or morality1.

The test of obscenity as laid down in Hicklin’s case2 is whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences because it is quite clear that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character.

Further as observed in Raj Kapoor v. State3 “Jurisprudentially speaking, law, in the sense of command to do or not to do, must be a reflection of the community’s cultural norms, not the State’s regimentation of aesthetic expression or artistic creation.”

What can be inferred from the above cited judgments is, if a particular performance is against that interest and is capable of depraving and corrupting those whose minds are open to such immoral influences it will be against public interest and as such objectionable. Considerations of possible damage to the society and promotion of public decency and morality will have to outweigh considerations of the interests of those who are running the show for profit or those who conduct the performance for livelihood. As already analyzed the test for obscenity is the context in which the movie is made. If unnecessary sex has been portrayed in the movie, then it definitely leads to vulgarity.     

As the furore that arose on the movie ‘Girlfriend’ cannot be outrightly neglected. Gay and lesbian rights activists, too, are unhappy with the movie, saying it does not portray the true depiction of lesbianism. The movie has also upset women’s groups who say it is a pornographic and stereotypical portrayal of a lesbian relationship.

Unsuitable cultural policing

But definitely there is one other aspect to it, which gives a completely different picture. If we look at the reviews of the cinema hall owners who are closely related to such unsuitable cultural policing done by the groups who proclaim themselves as protector of morality, it looks all fake and fishy. 

We live in a democracy, and if a section of the society objects to the film, they must register their protest through a proper channel. Breaking down cinema halls that are screening the movie, or disrupting the shows is not correct.  It further gives an impression that they have their political intentions behind their actions, which have got nothing to do with the culture.  

Now a very pertinent question which comes to the mind is  “How can a country progress if such violence is permitted?

The questions that often arise are:

1. “Why don’t these agitators take up issues of poverty and hunger? Why do these so-called guardians of morality not stand up for such issues?”

2. “What moral right do these people have to point fingers?”

3. “Once a certificate is issued, Censor Board’s job ends there. Is it not up to State government and the law-and-order machinery to ensure that the film was safely released?”

4. “Is the right to successfully screen the movie not vested with movie makers and further can’t they legitimately expect a safe release from the  government?” 

In the light of these questions a conclusion can be safely drawn that these people do not have any right to do cultural policing in the way they want i.e. violent measures to prevent screening of such movies and damaging the property of concerned people.

Looking at the views and counter views over the matter, it becomes important to consider and analyze the law that has been made to take care of all such irregularities. As the Cinematograph Act, 1952 itself provides in the proviso to section 5(A) that applicant or any other distributor to whom rights in the film have been passed shall not be punished under any law relating to obscenity for which certificate has been granted.  It clearly implies that a positive right is vested in the moviemaker for which he cannot be punished if once certificate has been granted to him.

Creativity of the Moviemakers

There is a school of thought proclaiming that Censor Board should be abolished as it curtails the “Right of expression”4 of the moviemakers. Their argument in this regard is that few people cannot decide what is to be shown and what not; they cannot decide what will ruin culture or what will affect society adversely. 

The whole question then arises about the creativity of the moviemakers; that is their freedom unnecessarily curbed by unjustified taboos. We talk of meaningful cinema, but if we have censorship, which is so restrictive and conservative, no meaningful cinema can flourish. The kind of independence of expression that any serious work of art, including cinema requires, is curbed by such an organization. It is unfortunate that the intention of the filmmaker is never seen. Whether it is nudity or intimacy or sex, it has to be seen in its context and understood.

The Central Board of Film Certifications’ (CBFC) disapproval of a documentary on the Gujarat riots had the intellectuals and civil liberties organizations up in arms. Aakrosh (Cry of Anguish) produced by People’s Media Initiative (PMI) was reportedly denied certification by the Mumbai-based CBFC in February on charges that ‘‘the film depicts violence, reminds the people of the Gujarat riots and shows the government and the police in bad light.’’

This is an important film because it tells how the democratic rights of citizens were violated with impunity during the riots. There was a deliberate attempt to push the Gujarat riots out of public memory.

Law vis-à-vis creativity

The Cinematograph Act5 empowers the Censor Board to examine the films and direct the applicant to carry out modifications in the films. The Board could even go to the extent of refusing to sanction the film for public exhibition. At the same time it also ensures that no action will be taken up without giving an adequate opportunity to the applicant, which clearly implies that it takes care that no injustice is done.

When we talk about proper procedure then it becomes pertinent to have a look at the redress mechanism that law provides. The Act6 provides an Appellate Tribunal to appeal if applicant feels that any injustice is done. Further if the applicant feels that the decision of the tribunal is coloured with mala fide intentions, he can even go to the court. As the court has held in the case of K.A. Abbas v. Union of India7 that “Censorship in India has full justification in the field of the exhibition of cinema films and is justified under the Constitution.” This clearly implies that at any step no injustice is done, therefore the very validity of the Censor Board cannot be challenged. 

It is not always the case that the courts have been harsh on the interests of the moviemakers. When the right is unnecessarily curbed, courts have came out as rescuer for them as it happened in the case of Bobby Art International v. Om Pal Singh8 where it held “ The court should recognize the message of a serious film and apply the test to the individual scenes thereof.”                                                                   

Similarly it was also laid down in the case of Samaresh Bose and another v. Amal Mitra and another9 that “ In judging the question of obscenity, the judge in the first place should try to place himself in the position of the author what the author seeks to convey and whether  what the author conveys has any literary and artistic value. The judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have on the minds of the readers. A judge should thereafter apply his judicial mind dispassionately to decide whether the book in question be said to be obscene”.

Conclusion

There has to be a delicate balance maintained between the Right to the cinematic expression of the moviemakers and the role of Censor Board.
The self-bestowed responsibility of such groups who take up the cause of morality should be allowed to ease and Censor Board with progressive approach should step in with the help of the government for proper enforcement. It is often seen that even when the clearance is obtained from the government, the damage is done to the property of moviemakers (artistic work is considered as property, idea broadened up).

There are few suggestions to reform the system, which would further help to improve the situation and control the whole chaos. 

• The Censor Board should play its role in striking the balance as it is given the authority to check and maintain the delicate balance between the creativity and culture.

• It should be progressive in its approach.

• It should not only look at the controversial scenes but should also try to understand the theme of the movie.  

• The government can play a vital role in protecting the interests of the moviemakers once their movie is  duly passed by the Censor Board.

• At the same time the cine makers should also take up this responsibility not to make a sex package to be sold under the garb of creativity.      

• There is one other aspect which should be taken care of and that is that the interests of the moviemakers should not be reduced to rubble by making them wait in the corridors of the court for times immemorial.        

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1 Ranjit Udeshi v. State of Maharashtra, AIR 1965 SCC 881: (1965) 1 SCR 65.

2 (1868) 3 QB 360.

3 AIR 1980 SC 258: 1980 Cri LJ 202.

4 Article 19(f) of the Constitution of India.

5 Section 4 of the Cinematograph Act, 1952.

6 Section 5 (c) of the Cinematograph Act, 1952.

7 (1970) 2 SCC 780: AIR 1971 SC 481.

8 1996 (4) Scc1 : AIR 1996 SC 1846: see also Ramesh Chotalal v. Union of India, 1988 (1) SCC 668: AIR 1988 SC 775.

9 (1985) 4 SCC 289: AIR 1986 SC 967.