I. Introduction
The recent controversy surrounding the release of the Netflix documentary Bad Boy Billionaires and the airing of a show on Sudarshan TV have reignited the debate around the issue of judicial censorship in India. What has been even more surprising in the case of these two contentious programmes is the differing approach adopted by the Court, thus highlighting a grey area in the realm of censorship laws.
A 49-second trailer of an upcoming show on Sudarshan TV, which had a deep communal overtone, caused a massive uproar on social media and led to the filing of numerous complaints with the Ministry of Information and Broadcasting. On the basis of these complaints, a notice had been issued to the channel by the Ministry for clarifying details over the content of the show with regards to the programme code of the Cable Television Network Rules, 1994. Meanwhile, the Supreme Court refused to stay the broadcast of the show.
The Delhi High Court, however, restrained[1] the channel from broadcasting it and subsequently refused to vacate the order. Section 5 of the Cable Television Networks (Regulation) Act, 1995[2] states that “no person shall transmit or retransmit through a cable service any programme unless such programme is in conformity with the prescribed programme code”. Section 19[3] confers the power to prohibit a broadcast in public interest if it may promote disharmony or enmity between different religious or racial groups as well on the basis of case and community.
In its reply to the notice, Sudarshan TV contended that its show could not be stopped from being telecast as that would amount to pre-censorship by the Ministry. The Ministry, after receiving the reply, went on to allow the telecast of the show[4]. It is to be noted that the Supreme Court, while refusing to interfere, had stated that “the Court has to be circumspect in imposing a prior restraint on publication or the airing of views. We note that under statutory provisions, competent authorities are vested with powers to ensure compliance with the law”.
In the Netflix case, a court in Bihar[5] stayed the release of Bad Boy Billionaires on a plea by Subrata Roy, one of those named in the documentary, as it found that Roy qualified the threefold test of prima facie case, balance of convenience and irreparable loss. Merely two days before this stay, the Information and Broadcasting Ministry had opposed Mehul Choksi’s (also portrayed in the documentary) writ petition in the Delhi High Court on the ground that “freedom of speech and expression is cardinal and should be given full play”. A civil court in Hyderabad also restrained[6] the release of the series in a petition filed by B. Ramalinga Raju, who is one of the four billionaires depicted in the Netflix show.
II. History of judicial censorship
There has been a long history of judicial censorship in India. In K.A. Abbas v. Union of India[7], censorship under the Cinematograph Act, 1952[8] was held to be a very valid and important exercise as the cinema was one of the most influential mediums of mass communication. A recent order[9] of a Delhi Civil Judge that restrained the sale of a book titled Godman to Tycoon must be mentioned when talking of judicial censorship. The order was passed without even providing a hearing to either the writer or publisher of the book. The Judge stated that he had given the book a cursory reading and examined the contentious portions, which he found to be defamatory. On this basis, the sale of the book was restrained.
In 2015, the makers of The Textures of Loss approached the Bombay High Court to appeal[10] against the decisions of the Central Board of Film Certification (CBFC) and the Film Certification Appellate Tribunal (FCAT). One of the scenes which was asked to be deleted by the Board was that which involved a father who, upon the death of his eight-year-old son in Kashmir, makes a statement against India and the Government. The scene was asked to be deleted on the ground that the comment would be considered as sedition under Section 124-A IPC[11]. One silver lining amidst the gloomy pall of judicial censorship has been the case of Udta Punjab. While the CBFC had demanded a whopping 89 scenes to be cut from the movie for it to be allowed certification, the Bombay High Court ordered[12] for the film to be granted certification within 48 hours, with just a single cut. In this case too, however, the Court did go into the merits of the modifications made by the CBFC, in effect running a censorship mechanism by itself.
Actor-director Amol Palekar had filed[13] a writ petition in 2017 challenging the constitutional validity of certain provisions of the entire set of cinematography laws, which he alleged to be in infringement of the fundamental rights of both the artists and the audience. In particular, the petition seeks that Section 4(1)(iii)[14], which empowers the CBFC to carry out excisions amounting to pre-censorship, be done away with. Further, it demands that the present CBFC be declared incompetent to carry on functions under the Cinematograph Act and that the guidelines issued under the Act be quashed as they are abstract and imprecise, leading to subjective interpretations of scenes in a film and amounting to unfair curtailment of the filmmakers’ freedom of expression.
The petition also asked for the implementation of the recommendations made by the Shyam Benegal Committee, which was constituted to recommend guidelines for certification of films. The Report of the Committee recommended, in addition to the fresh guidelines, that the Central Board of Film Certification should only function as a certification body.
III. What was the fuss around Jolly LLB
So, what was all the fuss surrounding Jolly LLB? It is worthwhile to note that both movies of the franchise have faced similar controversies. In 2013, about the time when the first instalment was about to be released, a public interest litigation (PIL) had been filed in the Delhi High Court praying for the issue of a writ of mandamus to the CBFC directing it to withdraw the certification granted to the movie. The advocates behind the petition pointed out to the Court, on the basis of the promotional trailer released by the producers, that certain dialogues in the movie were in contempt of court in light of Section 5-B of the Cinematograph Act, 1952[15], in addition to being defamatory in nature.
According to this provision, no visuals or words involving defamation of an individual or contempt of court are to be presented. Contempt of court has been explained in guidelines of the Government as any scene that creates scorn, disgrace or disregard of rules, or undermines the dignity of court. The Delhi High Court[16] stated that the petition could not be entertained for want of full details, as it was based only on the trailer of the yet to be released movie, and dismissed the petition. The appeal to the Supreme Court was also dismissed off with Justice Lodha remarking that, “if you don’t like it, don’t watch it”.
The second instalment faced a relentless barrage of cases raising red flags over the depiction of the legal profession and showing the judiciary in bad light. A lawyer had filed a petition in the Bombay High Court[17] to prevent the screening of the movie by pointing out certain scenes which showed lawyers playing cards in court premises and even a Judge ducking to avoid objects being hurled at him. The petitioner even asked for the removal of the word LLB from the title of the movie. The High Court, finding a prima facie case of contempt of court, turned[18] the petition into a PIL and proceeded to appoint a three-member Committee to review the movie and submit its report. The producers of the movie knocked on the doors of the Supreme Court against this decision to appoint a Review Committee.
It was argued before the Supreme Court that the Bombay High Court had no jurisdiction to appoint a Review Committee as such an action amounts to the creation of a parallel censorship mechanism. The Supreme Court however refused to intervene in the matter and the case was withdrawn from the Court after the High Court’s verdict. The Review Committee’s report recommended the deletion of four scenes from the movie. The High Court ordered a partial deletion of the scenes, on the basis of a compromise proposed by the producers. Thus, the issue of jurisdiction of the court to conduct parallel censorship was not dealt with at all.
IV. Critical analysis
The Cinematograph Act, 1952 lists out the process to be followed for certification of a film by the CBFC, who is to act in compliance with the fundamental right to freedom of speech, as enshrined in Part III of the Constitution[19]. Further, there are the Cinematograph (Certification) Rules, 1983 and the guidelines issued by the Government in 1991. In cases where certification is refused, a person may approach the Appellate Tribunal for reconsideration. The courts, however, are not conferred with any jurisdiction whatsoever under this Act to allow them to interfere in the process by granting or refusing certification to a film. The CBFC is a statutory body formed for the purpose of determining certification for films and all matters ancillary to the exercise of this function, such as suggesting cuts, modifications, etc. The FCAT has been created for hearing appeals against the decision of the CBFC.
Nevertheless, there are a few manners in which the judiciary can get involved into censorship. The courts can be approached when a person has reason to believe that either the CBFC or the Appellate Board have acted in an illegal or arbitrary manner in the process of certification. This essentially means that the right to free speech of those persons has been violated and, in such cases, the courts can review the decisions concerned. There have been several cases where such reviews have been carried out, for instance in Srishti School of Art, Design and Technology v. Chairperson, Central Board of Film Certification[20], the Delhi High Court ruled that courts have the power to overturn decisions of the CBFC and FCAT. It reiterated the position of the Bombay High Court in F.A. Picture International v. Central Board of Film Certification[21] that the courts can assume this power if the decision of the CBFC encroaches upon the freedom of speech and expression.
The Court can also into the picture when the certification of a film is objected to by a third party, as was the case in the Jolly LLB movies where objections were filed by lawyers alleging defamation to the legal profession and the judiciary. Another instance[22] of this scenario was the Phoolan Devi matter. In this matter, certain members of the Gujjar community had challenged the grant of certificate in the High Court, which went on to rescind the certification of the film. The Supreme Court however later set aside the judgment of the High Court[23].
The question that arises in this regard is whether the process of certification allows for a third party to file its objections and approach the courts. This particular question had also come up before the Delhi High Court in a PIL filed against the release of the movie, 31st October. The Court dismissed[24] the plea for restricting the release of the movie stating that the allegations levelled against it were vague and unsubstantiated. Also, the Court noted that it was not sufficient for it to arrive at a conclusion only on the basis of the trailers and posters of the movie. Since the movie had been certified for public display by the CBFC, the Court held that any interference would be unwarranted.
On the issue of third parties, the Court had initially observed that it did not find any provision in the Cinematograph Act, 1952 which gave third parties the standing to object to the certification of a film. The CBFC brought to the attention of the Court that there were certain rules under the Act which prescribed that third parties could approach the Board for filing a complaint, which would then be forwarded to the Government. The final position on this subject-matter however remains unclear. Moreover, it is to be observed that most of the petitions that are filed in the courts against the release or certification of a particular movie are in the form of PILs, and thus, the question of standing does not arise.
The next issue that must be discussed is whether the courts are entitled to censor films in light of the freedom of speech and expression. In order for a restriction on the freedom of speech to be valid, it must be backed by way of a law passed by the State. However, there is no such law in this case which authorises the Court to censor speech and expression. Moreover, the Court cannot be interpreted under the ambit of the term “State” as mentioned in Article 19(2)[25] and therefore, an order passed by the court is not considered as law. This was decided definitively in Rupa Ashok Hurra v. Ashok Hurra[26]. It can be concluded on this basis that the judiciary cannot indulge in censorship of a film.
The role of the Court is limited to determining instances where the CBFC or FCAT acted in violation of its powers, or in derogation of free speech laws and direct it to redecide the matter in proper accordance with the law. The actions of the Bombay High Court in setting up a three-member Committee to review the second Jolly LLB movie amounted to the unlawful judicial censorship. It is not the prerogative of the Court to entertain a dispute on the merits of the scenes of the film.
V. Conclusion
It is important to leave this debate around whether the judiciary has the requisite jurisdiction to go into the merits of the modifications suggested by the CBFC with Justice Black’s comments in Kingsley International Pictures Corpn. v. Regents of the University of the State of New York[27]. He observed that:
- … judges possess no special expertise providing exceptional competency to set standards and to supervise the private morals of the Nation. In addition, the Justices of this Court seem especially unsuited to make the kind of value judgments—as to what movies are good or bad for local communities….
Let us now come back to the question that was raised by the researcher in the initial sections of the paper i.e. is the power of censorship in the hands of the judiciary a necessary evil? Or perhaps the wider question as to whether censorship in itself is a necessary evil or not? The latter question has been raised increasingly over the years as calls are being made for the functions of the CBFC to be curtailed to merely certifying films, rather than censoring them.
It is the view of the author that censorship of films by bodies such as the CBFC in itself must be viewed as an unreasonable restriction on the fundamental right to freedom of speech and restriction. Justice Lodha’s comment, “if you don’t like it, don’t watch it”, fits best in the situation. As mentioned in the preceding sections, even the Shyam Benegal Committee had recommended the abolition of the CBFC’s role as an institution of censorship. Censorship at the hands of the judiciary bodes even worse as the courts are devoid of any jurisdiction to infringe upon the freedom of speech and expression. Not only does such censorship steal this freedom from the artists and makers of films, but also from the audience, whose right to enjoy such art is integral to their freedom of speech and expression. Therefore, in conclusion, the researcher wishes to put forth that not only is judicial censorship not a necessary evil, but it is also patently illegal and such an exercise by the courts must be stopped in its tracks.
* 3rd-year student, BA LLB (Hons.), National Law University, Nagpur
[1] Aditi Singh, Delhi HC Refuses to Lift Stay on Sudarshan TV’s Broadcast on Muslim “Infiltration” in Government Services, Bar and Bench, 298-2020, available at <https://www.barandbench.com/news/litigation/delhi-hc-refuses-lift-stay-sudarshan-tv-muslim-infiltration-in-government-services>.
[2] http://www.scconline.com/DocumentLink/05XTW6Q5.
[3] http://www.scconline.com/DocumentLink/68pHBDPV.
[4] Scroll Staff, I&B Ministry Allows Telecast of Communal Show on Sudarshan News, Cites no Pre-censorship Norm, Scroll.in, 11-9-2020, available at <https://scroll.in/latest/972811/i-b-ministry-allows-telecast-of-communal-show-on-sudarshan-news-cites-no-pre-censorship-norm>.
[5] The Wire Staff, Bad Boy Billionaires’ Trailer Taken off Site After Subrata Roy Gets Court Order, The Wire, 30-8-2020, available at <https://thewire.in/law/bihar-court-subrata-roy-bad-boy-billionaires-netflix>.
[6] Ibid.
[8] http://www.scconline.com/DocumentLink/cU28r6a4.
[9] Delhi High Court Restrains Sale of Book on Baba Ramdev, NDTV, 30-9-2018, available at <https://www.ndtv.com/india-news/delhi-high-court-restrains-sale-of-godman-to-tycoon-the-untold-story-of-baba-ramdev-on-baba-ramdev-1924389>.
[10] Uday Bhatia, Udta Punjab’s Companions in Court”, Livemint, 15-6-2016, available at <https://www.livemint.com/Consumer/YpWMwEj6MD2KRvuMhPyvlI/Udta-Punjabs-companions-in-court.html>.
[11] http://www.scconline.com/DocumentLink/PL9xvg1D.
[12] Ankur Pathak, “Udta Punjab” Cleared with Just One Cut, Bombay High Court Lashes Out at Censor Board, Huffington Post, 13-6-2016, available at <https://www.huffingtonpost.in/2016/06/13/udta-punjab-high-court-ve_n_10437890.html>.
[13] Amol Palekar, In India, the Very Process of Film Certification is a Punishment, The Wire, 17-4-2017, available at <https://thewire.in/film/amol-palekar-film-censorship-supreme-court-petition>.
[14] http://www.scconline.com/DocumentLink/kRr7Gs2L.
[15] http://www.scconline.com/DocumentLink/5YYu14lA.
[16] Shilpesh Chaudhary v. Union of India, 2013 SCC OnLine Del 996.
[17] Ajaykumar v. Union of India, 2017 SCC OnLine Bom 126.
[18] Nitish Kashyap, Bombay HC Finds Prima Facie Case of Contempt against JOLLY LLB 2, Orders Committee to Submit Report, Live Law, 30-1-2017 available at <https://www.livelaw.in/breaking-bombay-hc-finds-prima-facie-case-contempt-jolly-llb-2-orders-committee-submit-report/>.
[19] http://www.scconline.com/DocumentLink/Uei3bEDC.
[22] Tanul Thakur, “Disgusting and Revolting and Obscene”: “Bandit Queen” and the Censors, Livemint, 13-7-2018, available at <https://www.livemint.com/Leisure/VDNX1GQ7uY2b2v4HYcxRhK/Disgusting-and-revolting-and-obscene-Bandit-Queen-and-t.html>.
[23] Phoolan Devi v. Shekhar Kapoor, 1994 SCC OnLine Del 722
[24] Plea in Delhi High Court against Release of Soha Ali Khan starrer 31st October, The Indian Express, 19-10-2016, available at <https://indianexpress.com/article/entertainment/bollywood/plea-in-hc-against-release-of-movie-october-31st-3066453/>. See also, Ajay Katara v. Union of India, 2016 SCC OnLine Del 6594.
[25] http://www.scconline.com/DocumentLink/74roly04.
[27] 1959 SCC OnLine US SC 130: 3 L Ed 2d 1512: 360 US 684 (1959) .