CENSORSHIP : IS IT NECESSARY OR OBSOLETE? – An Article by Vijay K Sondhi

CENSORSHIP[1]:

IS IT NECESSARY OR OBSOLETE?

“I do not agree with what you have to say,

but I will defend to the death your right to say it”

-Voltaire

To censor in general means to examine (a book, film, etc.) officially and suppress unacceptable parts of it. There had been different views for the necessity and the obsoleteness of the CENSOR in history.  In the ancient Roman Empire, censorship became an official duty, and it is there that the word “censor” was first introduced. The title of censor was given to a public official in the Roman government, and the office existed from 443 to 22 B.C.  Coming from the Latin word censere—meaning to appraise, value, or judgethe chief job of the censor in Rome was to keep an accurate count, or census, of the citizens of Rome. Also listed with the censor’s duties, however, was the regulation and supervision of public morality. In the duties of this office, Roman censors (also known as castigatores or chastisers) had the power to determine if the actions of an individual were cause for degradation in citizenship or rank, regardless of the legality of such actions.  While the office of censor was eventually abolished from the Roman government, the idea that it was the obligation of the state to set standards for public morality would persist throughout history. Perhaps the most famous case of censorship in ancient times is that of Socrates, sentenced to drink poison in 399 BC for his corruption of youth and his acknowledgement of unorthodox divinities. It is fair to assume that Socrates was not the first person to be severely punished for violating the moral and political code of his time.

There were times when burning of books was in vogue (As there were no motion films to censor). The invention of the printing press in Europe in the mid 15th century only increased the need for censorship. Although printing greatly aided the Catholic Church and its mission, it also aided the Protestant Reformation and “heretics”. To censor was such a huge need of those times that the Pope Paul IV had to introduce the “Index Librorum Prohibitorum”[2] The first of such “Index of Prohibited Books” was ordered in the year 1559.

 

“When you tear out a man’s tongue, you are not proving him a liar,

you’re only telling the world that you fear what he might say.”

George R.R. Martin 

 

The most famous of authors that the Catholic Church banned is “Galileo (1633)”, and the most famous victims of the Inquisition’s trials must be “Joan of Arc (1431)” and “Thomas More (1535)”.

This ancient view of censorship, as a benevolent task in the best interest of the public, is still upheld in many countries, for example China. This notion was advocated by the rulers of the Soviet Union (USSR), who were responsible for the longest lasting and most extensive censorship era of the 20th Century. This need for censorship was actually due to the ignorance and over protection of morality and innocence of the society at large. As it was beautifully put by Charles Bukowski that, “Censorship is the tool of those who have the need to hide actualities from themselves and from others. Their fear is only their inability to face what is real, and I can’t vent any anger against them. I only feel this appalling sadness. Somewhere, in their upbringing, they were shielded against the total facts of our existence. They were only taught to look one way when many ways exist.”

 

“If all printers were determined not to print

anything till they were sure it would offend nobody,

there would be very little printed.”  

Benjamin Franklin

Irrespective of the era, there existed ample number of thinkers and visionaries who contributed fairly in the development of free speech and its protection from the censorship. With the passage of time the flow of the quantum of knowledge and the ideas related to them has increased. Also the mode of expression and the communication have also developed. In the modern times everything you could think of lies in the public domain and the society at large irrespective of the age, sex, class or creed has ample access to the data and resources which are available in public. The walls of classification between the different categories of literature and daily news items have been diminishing at fast pace. Gone are the days when the modern day Indian had to wait till the newspaper vendor used to drop the news paper in the balcony or the verandah of a house to go through the happenings of yesterday and to go to the public library or to buy the books, novels, magazine, journal etc. to feed their daily appetite for knowledge and information. Also the modes of publication of an idea, theory, opinion etc. have also changed from book writing to internet blogging and updating the status on facebook or twitter on daily basis which are having a more wide audience than it used to be in the era of newspaper, book readers etc. Today the dissemination and exchange of knowledge and idea, opinion etc. is taking place at the speed of Terabytes/second, in fact today every modern smart phone user has become a writer, critique, blogger, philosopher and promoter in his own right. The ripe questions now are that whether the censorship of free speech is justified today? Does it even make any sense to Censor for public anything which is going to be available on internet any way?

 

“Censorship is telling a man he can’t have a steak

 just because a baby can’t chew it.” 

― Mark Twain

 

This famous quote aptly fits the present day scenario. Here the “man” and the “baby” are metaphor for “mature” and “immature” mental ability, respectively. A person could be of senior age but that’s of no guarantee that s/he has matured enough mentally and vice-versa. Today the whole idea of the state protecting morality and innocence of the society at large has fallen on its face. Conversation has become a greater tool for change than censorship. Instances are umpteen where the state tried to thrust upon the people their sense of morality and failingly tried to impose the censorship on the works of art and literature to protect the innocence of the society at large, but all in vein. Fortunately at times when the public on its own could not deal with the state censorship the Judiciary came to the rescue of the artist or the writer concerned thereby protecting the idea of free speech which has been inculcated as fundamental right under the Article 19(1)(a) of the Constitution of India. This right is not absolute and it is subject to the reasonable restrictions.

 

CENSORSHIP IN INDIA

“Free societies…are societies in motion, and with motion comes

tension, dissent, friction. Free people strike sparks,

and those sparks are the best evidence of freedom’s existence.” 

― Salman Rushdie

After the imposition of emergency by the then prime Minister Ms. Indira Gandhi and in the aftermath of this onslaught it was in the year 1989 when the “Satanic Verses” was banned in India for its purported attack on Islam. It did not find many supporters of free speech then; today the whole book is available on internet in PDF form. There came a time when a complaint case was filed against the then young super models Milind Soman & Madhu Sapre as they appeared semi nude in an advertisement poster wearing the shoes of a particular brand and their modesty was aesthetically covered by using a python instead of any clothing. Both got discharge from the Hon’ble Supreme Court of India. Today the whole focus has shifted from the books and photographs to the films and cinema. In the year 1991 the central government issued a set of guidelines for sanctioning films for public exhibition by way of Notification no. S.O. 836-(E) dated 6.12.1991 directing that, in sanctioning films for public exhibition, the Board of Film Certification shall be guided by the principles enunciated     in those Guidelines. These Guidelines enable the members of the Board and the Appellate Tribunal, to operate as powerful censors imposing their values and morality on the film maker. If a film maker opines anything which is not in consonance with the mindset of that particular board member, he is subjected to a lesson on morality and patriotism by the Board and the Appellate Tribunal. Either their movies are subjected to the cuts and deletions or they are forced to show a disclaimer in their movies. India has long history of banning cinema from public exhibition from “Neel Akasher Neeche (1959)” to “Mohalla Assi (2016)” or to the latest controversy relating to a demand in the state of Tamil Nadu for banning the public exhibition of South Indian Super Star Vijay’s latest release “Mersel (2017)”. “Mersel” is being severely criticized by the Tamil Nadu BJP’s president who objected to scenes that criticized the Centre’s GST regime and asked for cuts.  She also slammed Vijay and director Atlee for spreading ‘factually incorrect’ information. For one reason or the other all these movies have faced similar situations. Some survived through with the help of the Hon’ble High Courts and the Hon’ble Supreme Court of India but not every film maker has the courage and means to defend his cause in the highest of Courts against the ruling government itself.

Guidelines, if at all to be issued, can easily be culled out from the various Supreme Court judgments on freedom of speech and expression. The guidelines (in the form of precedents) may be summed up inter-alia as follows:

  1. i) Freedom of thought and expression in a film can only be restricted in terms of Article 19(2) of the Constitution of India and on no other consideration[3].
  2. ii) Even if the view point expressed in the film is hateful to government’s policies no interference is permitted[4].

iii) Interference is permitted only if there is a direct nexus between the expression in the film and public order like a “spark in powder keg” (Supra).

  1. iv) The mere threat of demonstration and processions or threats of violence cannot be basis of interference. The State cannot plead its inability to handle the hostile audience problem as an excuse to ban a movie from public exhibition. A film cannot be held to ransom by an intolerant group of people (Supra).
  2. v) Open criticism of government’s policies and operations is not a ground for interference (Supra)
  3. vi) The viewpoint of the Film Certification Authorities should be that of a strong minded, firm and courageous persons (Supra)

vii) Films that illustrate the consequences of a social evil must necessarily show that social evil[5].

viii) The film must be viewed as a whole and not in bits and pieces and in the entire context of the message that the film maker desires to communicate. (Supra)

  1. ix) The Authorities must make substantial allowance in favour of freedom leaving a vast area for creative art to interpret life and society[6].
  2. x) No restriction can be placed on freedom of speech and expression in the name of public interest since Article 19(2) of the Constitution does not include that clause (Supra).
  3. xi) While viewing a film it is better for the Authorities to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigor of those yielding the proper fruits (Supra).

xii) No interference can be justified on the ground of convenience or expediency[7].

 

THE WAY FORWARD

“[O]ne man’s vulgarity is another’s lyric.” 

― John Marshall Harlan

Today in the ever-changing measure of innocence and moral standards the whole world has become a global village. You may raise your voice of opinion on social media while sitting in the far corner of Ghana but your statement shall echo to the whole world. The way our youth and young children are growing with remarkable knack for technology and information the censor has a limited role to play that too only in the matters of national security and threat to the sovereignty of the nation as enshrined under the Constitution of India. Reasonable restriction must be considered as a narrow path of restricting free speech reasonably on the touchstone of above two elements only. It is pertinent to mention that the Cinematography Act, 1952 nowhere provides the board or the tribunal with the power to censor a film. Even the term “censor” does not find a mention in the whole Act. Importantly the Act is an instrument to certify the movies for public exhibition and not to censor them. Yesteryear’s obscenity has become tastefully moral today, the profanity has found its way to the common parlance, and truth could no longer be kept from the public. People today are more aware of their rights to speak, to know, to watch and to silence as well. It should be the other way round instead of letting the Government and the board decide what is moral and innocent for the society at large let the society itself decide what is good and what is harmful for the sake of protection of the moral standards of today and the innocence of the young as well as developed mind. Gone are the days when people would settle for the “beeps” and “blurs” today we are living in the era of UN-CUT and Un-Inhibited. The common man has become more sensible regarding the choices they have. This discussion could be endless, solution may be visible or blur but the endeavor to protect the free speech shall be continued with parallel joy.


[1] The author of this article, Vijay K. Sondhi is a Senior Partner at Luthra and Luthra Law Offices, New Delhi, India. (Views and opinions expressed in this article are those of the authors and do not necessarily reflect the views of the firm). Research contribution by Sarvajeet Kumar Thakur.

[2] http://www.beaconforfreedom.org/liste.html?tid=415&art_id=556

[3] [Gajanan Visheshwar Birjur v. Union of India ; (1994) 5 SCC 550]

[4] [S. Rangrajan Vs P. Jagjivan Ram; (1989) 2 SCC 574]

[5] [Bobby Art International & ors v. Om Pal Singh Hoon & ors. ;  (1996) 4 SCC 1]

[6] [Indian Express Newspapers Vs Union Of India & Ors. ; (1985) 1 SCC 641]

[7] [S. Rangrajan Vs P. Jagjivan Ram; (1989) 2 SCC 574]

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