“Freedom after the speech – that is really what freedom of speech is all about.” – Fali S. Nariman
Freedom of speech and expression is a fundamental right of every Indian citizen. Article 19(1)(a) of the Constitution of India guarantees this to every citizen. At the same time, India has a host of different censorship laws. These laws cover press freedom, censorship of films, speeches, gatherings, and more. In this situation of two seemingly contradictory provisions, the question arises: where does the balance lie?
Freedom of Speech and Expression: A Fundamental Right
Freedom of speech and expression is a fundamental right guaranteed to every citizen of India by the Indian Constitution. It is the pillar of free democratic expression and a free State. In a democracy, the citizens must be allowed to express their views freely and portray their artistic expressions however they choose. Even so, the Constitution puts some reservations on this freedom; in certain situations, the State can curtail the freedom of speech and expression. These situations include matters related to:
- The sovereignty and integrity of India
- The security of the State
- Friendly relations with foreign states
- Public order
- Decency or morality
- In relation to contempt of court
- Incitement to an offence
These reservations are often cited as the backing to any censorship law in India.
The law that regulates film and censorship in cinema is the Cinematograph Act, 1952. This Act established the Central Board of Film Certification (CBFC), a government-appointed body. No film can be publically exhibited in India without receiving a certificate from the CBFC. The CBFC judges a film with the lens of public order, morality, and decency. The CBFC has the power to cut scenes, alter them, or ban a film completely. Currently, in India, a film can be classified as any of the following:
U – Unrestricted exhibition
UA – Unrestricted exhibition except for children under 12 years of age
A – Restricted to adults only
S – Restricted to a specified class of persons
The CBFC has a duty to exercise its power while respecting artistic freedom. This duty. In the end, morality and decency are subjective matters. What is moral to one may not be moral to another. However, since films are artistic expressions of their creators, they must be respected, and the CBFC cannot act as moral police.
Another issue when it comes to film censorship is the power of State Governments to ban the screening of films in their States. For example, the State Governments of Rajasthan and Gujarat banned the film Padmaavat from theatres. The Supreme Court stayed the orders of these states and observed that the State must maintain law and order during the screening of a film. A State Government cannot interfere with intellectual and artistic creativity without the backing of the law.
There have been several committees and reports created to recommend changes to the working of the CBFC. Unfortunately, all these reports have gone ignored. Two of the most recent ones, which were quite similar in their recommendations were the Mudgal Committee report and the Shyam Benegal Committee report. Recommendations included the creation of new categories such as A-C (“A” with caution) so that film viewers could make a more informed decision. This addition was to warn viewers who might be triggered or uncomfortable with graphic scenes like violence, domestic abuse, and drug abuse.
The primary statute to regulate online content is the IT Act, 2000. According to Section 69A of the IT Act, the Central Government may issue directions to block any information from public access. The information it seeks to block must fall under the same reservations provided under Article 19(2) of the Indian Constitution. This provision gives expansive powers to the government to restrict anything it deems unfit for public access.
Sections 67A, 67B, and 67C of the IT Act ban and provide punishments for the publication of any obscene material, sexually explicit content, or any material that depicts children in a sexual manner. These provisions seek to maintain morality and decency.
Currently, there is no legal framework regulating online content platforms like Netflix, Amazon Prime, and Hotstar. Content on these platforms does not undergo any official censorship or certification process. On the one hand, this allows creators to be as free as they wish to be in terms of artistic expression. On the other hand, one must consider the rising popularity of such platforms and assess whether censorship is required.
Finding the balance between censorship and freedom of speech and expression is a difficult task. This difficulty arises mainly because the balance is dynamic. Public morality is ever-changing, and that means more people will be willing and wanting to see content that previous generations might not. At the same time, one must consider the delicate nature of public sentiment. Censorship is a means to maintain public order. One thing is for sure. The government must pay more attention to the reports of various committees and implement some of their recommendations. Otherwise, we will be held back by archaic laws while the rest of the world moves forward.