When cinema first came to India in the early 20th century, it caused the ruling British a few headaches. The “excitable natives”, according to the English press, were going to be subjected to provocations that they were entirely unfit to handle.
The chastity of white women would come under severe threat if the Indians were allowed were allowed a free rein in the cinema theatres, with all the verisimilitude of the silver screen before them. Consequently, more than fifty regulations were drawn up to regulate and control the exhibition of films in India.
With the advent of Independence, one would have thought that such arguments would have been driven out of the country along with the British. Instead, they were largely replicated in the 1952 Cinematograph Act, the newly minted Indian Parliament’s legislation for dealing with the cinema.
The Act established what, in technical language, is known as “prior restraint”: that is, it required filmmakers to obtain clearances from a certification board (commonly known as the “censor board”) before their films could be screened for the public. In other words, the Cinematograph Act authorized a government body to forbid the exercise of the freedom of expression (i.e., films) even before it could enter the marketplace of ideas.
Prior restraint is considered to be a particularly draconian kind of restriction on free speech, since it prevents speech from ever reaching an audience. Courts all over the world, and for a long, long time (as far back as the 1760s, in England) have taken a dim view of prior restraint, holding that while the state may prosecute and punish those who engage in speech or expression that breaks the law, it cannot prevent a person from publishing or expressing herself on the ground that once she does so, it would break the law.
Allowing this would decrease the costs of censorship to a vanishing point: the state could censor whatever it wanted, and then it would be up to citizens to run around making representations, or filing cases, trying to enforce their right to free speech. Ultimately, placing such power in the hands of the state would impoverish the marketplace of ideas immeasurably.
In addition to imposing prior restraint, various guidelines framed under the Cinematograph Act were extraordinarily broad and vague. For instance, “indecorous or suggestive dressing” and “sensuous postures” were placed beyond the pale. “Lowering the sacredness of the institution of marriage” and “excessively passionate love scenes” were also condemned. What remained, then, of the filmmaker’s freedom of expression? The answer, of course, is “not much”.
The constitutional validity of the Cinematograph Act and its attendant guidelines was challenged by filmmaker K.A. Abbas. In 1970, the case came to be decided by our old friend, Chief Justice Mohammad Hidayatullah, who—five years earlier—had upheld the ban on Lady Chatterley’s Lover on the grounds that it would tend to deprave and corrupt the morally vulnerable, and had adopted an 1860s English test for determining “obscenity”.
What resulted was another entertaining display for the spectator, and another setback for the freedom of expression under the Constitution.
It was pointed out to the Chief Justice that while books were not required to submit to a legal regime of prior restraint, filmmakers were forced to jump through the censor board’s hoops. This discrimination between the different media of expression was illogical and arbitrary.
The court’s response was to begin by dismissing the distinction altogether. “Pre-censorship is but an aspect of censorship,” it held, “and bears the same relationship in quality to the material as censorship after the motion picture has had a run. The only difference is one of the stage at which the State interposes its regulations between the individual and his freedom. Beyond this there is no vital difference.”
For the reasons discussed above, this spectacularly misses the wood for the trees. But then the court attempted to distinguish between films and the written word. What was it that made films special? According to the court:
“… it has been almost universally recognised that 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 aural senses. The art of the cameraman, with trick photography, vistavision and three dimensional representation thrown in, has made the cinema picture more true to life than even the theatre or indeed any other form of representative art. The motion picture is able to stir up emotions more deeply than any other product of art. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to emulate or imitate what they have seen.”
In this way, the infantile natives of the colonial imagination, unable to handle the effects of the cinema, transformed themselves into… the infantile citizens of the judicial imagination, unable to detach themselves and calmly process the “instant appeal of the motion picture”.
The court’s thought process came to the fore in a very revealing comment: while arguing in favour of social interests overriding individual freedom, the court referred to the state as a parens patriae, a technical legal term, which originated in Roman law, that primarily refers to the right of the state to substitute itself in place of negligent parents or guardians of children (or disabled adults).
The state, it is argued, should be able to look after those who are unable to look after themselves. Only, in K.A. Abbas vs the Union of India, the Supreme Court treated the entire citizenry as unable to look after itself!
Chief Justice Hidayatullah’s squeamish personal morality, which was so much in evidence in his holding that Lady Chatterley’s Lover was an obscene text, came to the fore once more in the K.A. Abbas case, when he upheld the guidelines in toto and rejected the challenge of vagueness.
The guidelines, he held, were nothing more than concrete manifestations of Article 19(2) of the Constitution, which allows for reasonable restrictions upon the freedom of speech and expression in the interests of, among other things, morality.
According to Chief Justice Hidayatullah, phrases like “seduction”, “class hatred”, and “indelicate sexual situation” were all “within the understanding of the average men”. He then adopted the guidelines under obscenity law lock, stock and barrel into the Cinematograph Act, ending with a flourish:
“We may view a documentary on the erotic tableaux from our ancient temples with equanimity or read the Kamasutra but a documentary from them as a practical sexual guide would be abhorrent.”
The K.A. Abbas judgement, therefore, was a complete defeat for the cause of freedom of expression under the Constitution. It gave constitutional imprimatur to the entire regime of film censorship in India, legitimized prior restraint on entirely spurious grounds and upheld extraordinarily vague and ideologically motivated restrictions.
The annals of Indian free speech law are filled with film censorship cases, long battles against the censor all the way up to the Supreme Court, whether it is Bandit Queen or Tamas. They are also filled with heavy-handed censorial action that has repeatedly suffocated filmmakers in a moralistic and ideological embrace.
The next time, then, that we curse a particularly arbitrary act of the censor board, it might be worth remembering that the institution, the guidelines which it operates under and the law that created it were all sanctified by the highest court in the land. Some of the blame, surely, must lie there as well.
Gautam Bhatia is a New Delhi-based lawyer. His book Offend, Shock, or Disturb: Free Speech Under the Indian Constitution is available on Amazon.
Case Studies is a series that looks at why we have the laws that we have and what it means to change them.
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