The liberal Indian who cares for the rule of law and freedom of expression now faces a unique predicament. He must acquiesce to the arbitrary and whimsical decisions of the Central Board of Film Certification (CBFC) and allow Pahlaj Nihalani and his bunch of hypersensitive nannies to expand their reach and become the nation’s moral arbiters. Or he must turn to overburdened courts to restrain the board’s wanton vandalism and restore some sanity, such as treating audiences as responsible adults and not as mollycoddled, over-protected and impressionable adolescents.

The drama over the film Udta Punjab is but the latest episode in the long saga of battles between filmmakers and the board. Even as I write this, and even after the judgement from the Bombay high court, the Punjab and Haryana high court has called for a special screening of the film because a petitioner thinks the film (which he is unlikely to have seen yet) shows the state in a bad light. Clearly, the judgement in Mumbai isn’t enough.

We need the courts to stop not only arbitrary fiats from the board, but also from individuals whose sensibilities are readily offended. The CBFC inevitably reads the guidelines for film censorship such that it assumes that the average Indian (who may be old enough to be entrusted with voting, driving a car, entering into a contract and getting married) is a vulnerable teenager whose sensibilities must be protected from references to politics, drugs or, as in this case, public micturition. (According to the Bombay high court, the first two are fine, but not the third, which is probably another way of reminding Indians of the Swachh Bharat Abhiyan—in case you missed the fine print with the cess at the bottom of your bill.) The court has helpfully noted that the board “need not be over sensitive in the matter of art".

The problem isn’t whether that urination scene was tasteful, necessary or just plain insensitive. The problem is that India’s judges are ending up micromanaging such decisions. And they have to, because the people whose job it is to do so are spectacularly inept and palpably hypocritical.

The present case offered the court an excellent opportunity to create a precedent, such as calling for a framework with simpler rules that are consistent with the Constitution—restrictive though the Constitution is with regard to freedom of speech. It could have blocked future censors who furtively guard morality and cut what they think Indians shouldn’t see, rather than rely on the maturity of the same people who have voted in the politicians who appointed the same censors to the CBFC.

The process is frustrating for India’s filmmakers. The CBFC guidelines place so many caveats on freedom of expression that it is remarkable that films are getting made at all, given the kind of language, gestures, innuendoes and what can only politely be described as clothing in Indian films. (If the guidelines were observed strictly, films of Nihalani and of the chair of the Film and Television Institute of India, Gajendra Chauhan, would most likely not pass muster. That said, the problem lies with the guidelines, not Nihalani’s or Chauhan’s aesthetic.)

It is worse for documentary makers who tackle politically and socially sensitive subjects. Filmmakers like Anand Patwardhan and Rakesh Sharma have endured long battles with the state and its censors so that their films can be seen unscathed.

Beyond the censors is the drama with states. Some have sometimes restricted films even after the board has passed them, usurping the CBFC’s functions. And when that isn’t enough, vigilantes have stepped in to stop film screenings, raising threats of possible violence. Finally, there are the lone rangers, the individual busybodies who file cases.

If the CBFC guidelines go beyond the constitutional “reasonable restrictions" on expression, it is because electronic media is supposed to be more powerful than other forms, according to the 1970 ruling in the case involving Khwaja Ahmed Abbas’s film, A Tale of Four Cities. There, justice Hidayatullah (who had earlier allowed the ban on D.H. Lawrence’s novel, Lady Chatterley’s Lover) upheld the board’s right to make cuts. Since then, many members of the board have wielded the fine pair of scissors with gleeful abandon, as if it were an axe.

An Indian court has offered a better precedent—S. Rangarajan vs P. Jagjivan Ram. After the Tamil Nadu government decided to stop the release of Rangarajan’s film, Ore Oru Gramathile, in 1989 because pro-reservation groups threatened to disrupt the film’s screening (because the film criticized Tamil Nadu’s caste-based reservations), justice K.J. Shetty wrote: “The state cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression."

Wise words. But amidst the din of the lone rangers, the vigilantes, the axe-wielding censors and the governments abdicating their responsibility to protect freedom of speech, those words are getting lost.

Salil Tripathi is a writer based in London.

Comments are welcome at salil@livemint.com. To read Salil Tripathi’s previous columns, go to livemint.com/saliltripathi

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