After a very public feud, the producers of Udta Punjab have won their battle with the Central Board of Film Certification (CBFC); the film will likely now proceed with its scheduled release on 17 June. The Bombay high court directed the CBFC to certify the film within 48 hours with only one cut and the decision is rightly being hailed as a landmark for freedom of speech. But the judgment is not without its failings and in fact validates censorship in two ways; it upholds the power of the CBFC to request cuts (but does attempt to limit it) and it also contained comments about the necessity of certain scenes, showing an affirmation for censorship in principle.

All said and done, though the judgment may have many positives, it remains a fact that the regulation of films was in the hands of a select few group of people (whether censors or judges), a dangerous state of affairs for so subjective a medium.

The written order is yet to be released so the full reasoning of the judgment remains to be seen. It is possible that arbitrariness (under Article 14) may have played more of a factor in the decision than freedom of speech (under Article 19). If this is the case, it would mean that it was not the overreach of the cuts themselves that the court found fault with as much as it was the fact that the CBFC could not adequately justify them.

What is clear is that the one surviving cut is a scene of public urination that the court felt “unnecessary" after reading the script. In a similar vein, the court also upheld the deletion of some dialogue holding that “there was no need to incorporate abusive words in every dialogue". Words like “need" and “necessary" are irrelevant in issues of free speech—where the only question is one of “permissibility"—and are more at home in debates on artistic merit.

But this is precisely the problem with the whole conception of film regulation. The medium is inherently subjective and is open to a myriad of interpretations and opinions, a belief borne out in film theory. Film scholar Annette Kuhn writes that attempts at censoring are bound to fail as the censors “construct" film texts as “carriers of fixed meanings, when meaning is not actually inherent in film texts but produced in the process of their consumption."

The censorship of films is therefore quite problematic. The selective interpretation of a film by a few censors has the ability to deny access to watch a film to thousands. It is necessary at this stage to remember that a necessary corollary to the right to free speech is the right to be a free audience as well. This conundrum is only compounded by the fact that the guidelines used by censors are themselves often subjective in nature. The only way to ensure objectivity in such a scenario is through strong systems and procedural safeguards.

It is in this regard where the current regime of film certification in India fails spectacularly. If the CBFC is to impose a selective interpretation of a film on to the rest of the public, the degree to which it can fairly and critically assess films and reflect public opinion is crucial. But the Cinematograph Act does not contain qualifications for CBFC members and the entire censorship process is undermined by the excessive control the central government has over the CBFC—an issue addressed head on by the Khosla Committee. The Committee’s report bluntly pointed out that the present board was not independent from governmental control and the board’s decision could be set aside by an order of the central government, making the CBFC susceptible to the vagaries of politics.

It is abundantly clear that the architecture of film regulation in India is in dire need of reform. Removing certification altogether is not an option as they do have utility; a government enabled certificate grants security and legal protection. But many other changes are required. First and foremost, the CBFC should be detached from excessive control from the government and its composition should become more stringently regulated. The recommendation made by the Shyam Benegal Committee that the CBFC should be barred from requesting cuts and should only classify which age groups can watch films is also crucial.

But these reforms will not address the problem of subjectivity in the guidelines or the certification process, a task which is nigh impossible. As such, the ideal solution would be to license independent organisations to certify films and a producer unsatisfied with a certificate provided by one organisation could always approach another. Opening up the certification process to multiple operators allows subjective interpretations differing from one another to compete for legitimacy in the public space, thus opening up public discourse. Over time, certifiers would no doubt acquire different reputations (with producers and the public alike) regarding the kind of certificates they grant. The effects of these reputations would no doubt play a factor in the strategies of film producers in much the same way as a PG-13 rating in the USA affects the size of the possible audience for action films.

It would, of course, be necessary to maintain some level of government regulation over the certifiers. The CBFC would be tasked with regulating them by issuing licenses and guidelines. This would repurpose the CBFC as a protector of free speech and fundamental rights tasked with largely policing functions that only steps in where necessary. A streamlined procedure for appealing the certificates provided as well as for hearing complaints against the certifiers would be necessary components in this new framework. While somewhat revolutionary, this new framework would be an improvement because it allows the marketplace of ideas to draw the lines of what kind of content is fit for audiences with the government still being capable of stepping in to curb prurient sensibilities.

The writer is a research associate at the Takshashila Institution. Views expressed are personal.