Freedom of Speech and Expression and Ban on Films

February 5th, 201311:26 am @    

I disapprove of what you say, but I will defend to the death your right to say it.’

– Voltaire

The Screening of Film (Vishwaroopam) is banned for two weeks in  India( Tamil Nadu) amid protests by some community members in  pursuance to the request of the state police not to release the Film as it could disrupt communal harmony and lead to a law and order problem.

vishwaroopWhile analyzing the role of the censor Board, the Supreme court held in K.A. Abbas case that [1]: “The task of censor is extremely delicate and its duties cannot be the subject of an exhaustive set of commands established by prior ratiocination….Our standards must be so framed that we are not reduced to a level where the protection of the least capable and most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom this leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good.”

The practical mission of censorship is closely tied to the idea of creating an ‘ideal citizen-viewer. The task of censorship is to teach the viewer to become a citizen through a particular spectatorical practices, and the imagined gaze of the citizenviewer determines the specific content of censorship laws.

Censorship on the decline

In general, prior restraint regarding film screenings has been on the decline over the decades in the democratic world. Since the 1960s in the United States, the courts have prescribed rigid criteria for prior restraint in cinema. Gradually, film censorship became impractical and no prior administrative restraint of films exists today in U.S. However, supervision of film still exists in the shape of film classifications introduced by the Motion Picture Association of America. Similarly, in England, there is no general legislation conferring powers to censor movies, but the common practice is that censorship is based on the classification  of movies according to their suitability to different audiences.

   However, in contrast, certain countries such as India and several other Asian countries still retain censorship powers on films. The same can at best be understood as something in the nature of enforced morality being subjected up on the citizens by their state.

Censor board has failed

Despite the power of regulating the content of films being vested in the Censor, the Central Board of Film Certification (CBFC) has often failed in the task entrusted to it by either stifling creativity or hijacking morality and trying to substitute it with the morality of certain vested interests. It is at times like these that the courts have to step in as the savior of freedom, safeguarding different forms of expression against the censorial instincts of the state.

Censorship against depiction of the aftermath of Godhra roits

The case of F.A. Picture International v. CBFC[2] was regarding the film Chand Bujh Gaya, which depicted the ordeal of a youth couple- a Hindu boy and Muslim girl- whose lives were torn apart in the State of Gujarat. The CBFC held that “the Gujarat violence is a live issue and a scar on national sensitivity. Exhibition of the film will certainly aggravate the situation.” The Bombay High Court held that no democracy can countenance a lid of suppression on events in society and stability in society can only be promoted by introspection into social reality, however grim it may be.

   In Ramesh Pimple v. CBFC[3], the documentary film Aakrosh focused on the communal riots in Gujarat. The CBFC sought to curtail the screening of the movie on the ground that such exhibition would incite suppressed communal feelings. However, overruling this objection, the court gave the opinion that it is when the hour of conflict is over that it may be necessary to understand and analyse the reason for strife. We should not forget that the present state of things is the consequence of the past, and it is natural to inquire as to the sources of the good we enjoy or for the evils we suffer.

Thus the protection of freedom of speech is very much essential. Protection of freedom of speech is important for the discovery of truth by open discussion, for self- fulfillment and development, for expressing belief and political attitudes, and for active participation in democracy. It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order, because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the exercise of the right to freedom of speech and expression “in the interest of” the public

I end by quoting Prof Milton Friedman. He wrote, “Freedom is not the natural state of mankind. It is a rare and wonderful achievement. It will take an understanding of what freedom is, of where the dangers to freedom come from. It will take the courage to act on that understanding if we are not only to preserve the freedoms that we have, but to realize the full potential of a truly free society.”

[1] K.A. Abbas v. Union of India and Ors., AIR 1971 SC 48

[2] AIR 2005 Bom 145

[3] 2004(5) Bom CR 214

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Kush has obtained BA.LLB degree from Rajiv Gandhi National University of Law, Patiala.

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