In this article, Surya Rajkumar discusses the Constitutionality of Section 5B of the Indian Cinematograph Act, 1952.
The Supreme Court recently in the case of Viacom 18 Media Private Limited and Ors. v. Union of India And Ors.[i], held that once an expert body has determined the maintainability of a film in view of its effect on public order, the states cannot refuse such a film for public exhibition on the grounds that it may imperil public order.
The power to refuse a film for public exhibition on the grounds of public order is conferred to the Central Board of Film Certification by virtue of Section 4(1)(iv) read with Section 5B of the Indian Cinematograph Act, 1952 (the act).
Section 4(1)(iv) allows for the refusal of certification of films while Section 5B reads:
“A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of public order”.
A perusal of this provision makes it patent that it is pari materia with the restrictions on free speech espoused in Article 19(2) of the Constitution of India (the Constitution). The constitutionality of Section 5B was affirmed in the case of K.A. Abbas v. Union of India[ii], wherein the court held:
“With this preliminary discussion we say that censorship in India (and pre-censorship is not different in quality) has full justification in the field of the exhibition of cinema films.”
It is, however, pertinent to note that the constitutionality of Section 5B was only affirmed in response to its incongruence with Article 19(1)(a) of the Constitution which guarantees free speech. In this piece, I shall attempt to explore the constitutionality of Section 5B in terms of the federal structure enshrined in the Constitution.
Seventh Schedule and its Interpretation
Under Article 246(3) of the Constitution, the State Legislature has exclusive power to make laws with respect to any of the matters enumerated in List II of the Seventh Schedule. Entries in the Seventh Schedule are not powers, but fields of legislation.[iii]
When the vires of an enactment is impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible in favor of the Legislature putting the most liberal construction of the entry.[iv]
Although In the case of State of West Bengal v. Committee for the Protection of Democratic Rights[v], the Apex Court held “…….in a federal structure, the Union is not permitted to encroach upon the legislative powers of a State in respect of the matters specified in List II of the Seventh Schedule.”, in the same case it was also held that by virtue of the principle of federal supremacy where there is an irreconcilable conflict between the Union and State lists, the supremacy of the Parliamentary law will be adopted.
Public Order and the Act
In Entry 1, List II of the Seventh Schedule of the constitution, Public Order, except for the use of any force under the control the Union, is a state subject. The state legislature is given the plenary authority to legislate on all matters or are necessary for the maintenance of public order.[vi]
Entry 60 of List I of the Seventh Schedule confers upon the union the power to certify cinematograph films for public exhibition. In the case of State of Madras v. Gannon Dunkerley & Co.[vii], it was held that a matter mentioned in an entry is construed to cover all matters that are ancillary or subsidiary which can reasonably be said to be comprehended in it.
It is argued that the certification of cinematograph films is dependent on the effect these films have on public order and thus public order is ancillary to Entry 60 of List 1. Moreover, in the case of Naga People’s Movement for Human Rights v. Union of India[viii] it was contended that the Armed Forces (Special Powers) Act, 1958 insofar as it allowed an officer to use force in the interests of public order, was an encroachment upon Entry 1 of the State List, the Apex Court held that the act did not deal with public order. Public order falls within the realm of law and order.[ix]
Further in a slew of cases where a State banned a film after the CBFC’s clearance on account of law and order, the Apex Court has held that once an Expert Body (CBFC) has considered the impact of the film on the public and has cleared the film, it is no excuse to say that there may be a law and order situation.[x] One can thus submit that in upholding the authority of the CBFC to certify films for public exhibition based on their purported effects on public order, the Apex Court has implicitly upheld the constitutionality of Section 5B of the act vis-à-vis the federal structure.
It is also pertinent to note that a law is unconstitutional on the grounds of legislating on a subject that is not assigned to the relevant legislature by the distribution of powers made by the Seventh Schedule.[xi] The Supreme Court is yet to come across a case that warrants its attention to the constitutionality of the impugned provision as regards its consistency with the federal structure enshrined in the Constitution. When so it is very unlikely that the provision would be struck down as unconstitutional owing to the precedents mentioned hereinabove that favour its constitutionality, however, it would be interesting to see what view the court would take.
[i] Order in Writ Petition (Civil) No. 36 of 2018.
[ii] 1971 AIR 481.
[iii] Durga Das Basu, Commentary on the Constitution of India, (8th Edition, 2012), Volume 10, 11713.
[iv] Durga Das Basu, Commentary on the Constitution of India, (8th Edition, 2012), Volume 10, 11712.
[v] 2010 (3) SCC 571.
[vi] Romesh Thappar v. State of Madras, (1950) SCJ 418.
[vii] 1958 AIR 560.
[viii] (1998) 2 SCC 109.
[ix] Dr. Ram Manohar Lohia v. State of Bihar And Ors., 1966 AIR 740.
[x] Union of India v. K.M. Shankarappa, (2001) 1 SCC 582; Prakash Jha Productions v. Union of India, 2011 (8) SCC 372
[xi] Durga Das Basu, Shorter Constitution of India, (14th Edition, 2009); Namit Sharma v. Union of India, (2013) 1 SCC 745.