Let us recall the golden words of Benjamin Franklin - "Without freedom of thought, there can be no such thing as wisdom - and no such thing as public liberty without freedom of speech"
Cinema is one of the oldest forms of entertainment. But the moot question is are films made only for entertainment? The answer is an emphatic and obvious "NO". Cinema is not confined to stereotype films with love sequences, entertaining songs and dramatization. Some films are made to convey a message, share an inspiration or express an opinion on a sensitive subject. Such films have a larger exposure to Censor's scissors and many times to state or public fury even after certification by Censor Board of Film Certification (CBFC).
The concept of censorship is not confined to films. It extends to any and every form of content including on television, OTT platforms or even social media posts. This is a global phenomenon. The world witnessed the compromise between censorship and freedom of speech when Donald Trump was temporarily banned from Twitter for 12 hours amid the storming of the congress. The ban raised questions whether social media platforms should have the power to restrict site content or does it warrant regulatory intervention.
DO WE JUSTIFY CENSORSHIP OF FILMS
The statutory prescription for certification of films under the Cinematograph Act, 1952 was upheld by the Supreme Court in K.A. Abbas vs The Union Of India & Anr. to have full justification in the field of the exhibition of cinema films. Chief Justice Hidayatullah wrote a well-reasoned and artful judgment for a unanimous constitution bench. This was followed in Rangarajan v. P. Jagjivan Ram when the Supreme Court overturned the High Court decision while upholding the freedom of speech and expression. In doing so, the Court did acknowledge to have a compromise between the interest of freedom of expression and social interests.
In Bobby Art International v. Om Pal Singh Hoon, the Supreme Court considered the censorship issue, upheld the freedom of speech and expression through films and removed the restrictions imposed on the exhibition of the film "Bandit Queen" on the ground of obscenity. The key takeaway from this judgment is the observation that a film must be judged in its entirety from the point of overall impact. Where the theme of the film is to condemn degradation & violence and rape on women, scenes of nudity and rape and use of expletives to advance the message intended by the film is permissible.
The Cinematograph Act, 1952 prescribes a mechanism for film ratings in line with the law prevalent globally.
KUDDOS TO OUR JUDICIARY FOR UPHOLDING THE FREEDOM OF SPEECH AND EXPRESSION AND BALANCING THE REAL END AND INTENT OF CENSORSHIP
"If liberty means anything at all, it means the right to tell people what they do not want to hear." - George Orwell.
Films such as Water, Final Solution, War and Peace, Da Vinci Code, Vishwaroopam, Bombay and many more were restrained in the name of maintaining 'public order and had to knock the doors of the judiciary to secure a public release. In Prakash Jha vs. Union of India, the Supreme Court held that once CBFC has cleared the film for public viewing, screening of the same cannot be prohibited by the State. It is for the State to maintain law and order situation effectively and potentially to ensure the public viewing of a film certified by CBFC.
There are films which have faced troubled waters with CBFC. In 2016, the film Udta Punjab, ran into trouble with CBFC, resulting in a public re-examination of the ethics of film censorship in India. The CBFC released a list of 94 cuts and 13 pointers, including deletion of name of city of Punjab. The Bombay High Court cleared the film with one cut and disclaimer and held that contrary to the claims of CBFC, the film was intended to give a positive message and not to malign the state of Punjab. The film Lipstick Under my Burkha escaped the CBFC scissors when FCAT allowed the film based on woman fantasy to be released with some minor cuts.
One can surely not forget the fierce protests faced by the Bollywood epic "Padmavat". Finally, the Supreme Court cleared the release of the controversial film and overturned the decision by four states to ban its screening.
RESTRAINT ON SOCIAL MEDIA
Social Media is a bliss for being the most efficient tool for sharing views, opinions and photos and spreading awareness. However, few people have been misusing this platform. Some of the evils of social media are trolling, fake news, content leading to mob lynching, communal unrest, defamation etc.
In Shreya Singhal v. Union of India, Section 66A of Information Technology Act, 2000 was struck down because it violated Article 19(1) of the constitution of India. This was a controversial law under which posting offensive comments, posts or messages could have led to jail. One of many such cases was when a cartoonist was detained for making a cartoon of the Chief Minister of Bengal. In 2012, after the criticism of the shutdown of Mumbai two young women were arrested and one of them got arrested just for 'liking' the post.
Likewise, the content on social media has faced the wrath of public and in some cases, the judiciary. From Sacred Games to Tandav, the controversy has necessitated some form of regulation on social media.
CONCLUSION - THE PERFECT BALANCE - NO "LOCKDOWN" ON FREEDOM OF SPEECH AND EXPRESSION BUT SELF-RESTRAINT AND SELF-REGULATION
The lawmakers and judiciary are aligned in their approach to uphold the freedom of speech and expression. However, such freedom cannot be unfettered. So how do we maintain the perfect balance, how do we draw the perfect boundary?
Every creator needs to ensure that the exercise of his constitutional right and freedom does not transgress into violation of law and/or public policy. One must keep in mind the practical realities of the society in which such ideas are broadcasted. The peace and security of the society should not be disturbed in the process of expression of one's thoughts.
At the same time, what needs to be realized is that despite the complexity of morality, evil does exist in the real world, and storytellers would surely want to depict the reality it in their stories. Therefore, we need to ponder whether depiction of drug consumption by children in Bombay Begums warrants action from NCPCR? Whether depiction of mythological characters warrants FIRs on the allegation of religious sentiments being hurt?
Liberty of thought and expression as "cardinal" and the legal system will certainly not permit anything that "clearly affects" the fundamental right to freedom of speech and expression enshrined in the Constitution.
Therefore, let us not have a "lockdown" on freedom of speech and expression. The mantra should be to encourage self-restraint and self-regulation to ensure that a balance is maintained between the right of expression and the duty to maintain peace in the society.