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The article is written by Naman Sherstra from the Department of Law, University of Calcutta. This article depicts the laws related to women and obscenity under the Cinematograph Act.

Introduction

Our societal structure has played a pivotal role in the increase in violence against women. The need for legal provisions shows that women were considered subordinate to men. The societal norm of considering women subordinate to men and existing patriarchal notions have always tried to portray the stereotypical image of women in the film communicating gender inequalities in modern times. The Cinematograph Act 1952, was created to put a censor over the films before releasing on the grounds of obscenity or something threatening security, culture. However, for a long time, the portraying of women as an object has been done by the Indian Cinemas putting the “Laws for women” on stake. No doubt, cinema is a powerful mode of communication from the society which shows the prevailing reflection of the society but censorship is necessary in order to prevent the portraying of obscene, nudity and pornographic contents objectifying the women. Such movies have an ill physiological impact over the mind of growing children and society which further leads to an increase in the crime against women.

The film portraying obscene material is censored by the Central Board of Film Certification under the Cinematograph Act. The other laws which restrict the offensive image of  degrading societal morality are the India Penal Code, 1860, as well as the Indecent Representation of Women, 1986. The Emergence of online web visual websites such as Netflix, Amazon prime has opened a new world telecasting the web series and the cinema outside the theatre, on a mobile screen. The absence of a regulatory framework for the certification and censorship of such online websites has opened a new way for the obscene materials for circulation in the cinema market. Web Series like Sacred Games, Leila have openly portrayed nudity, abusive language, and obscenity in the online cinema world. The non-existing regulation has provided blanket protection to such websites where they are openly circulating obscene materials objectifying the women. Now, there is a need to analyse whether the existing laws are stringent enough to restrict the flow of obscene materials in the cinema defaming and objectifying the image of a woman.

Obscenity and vulgarity provisions under the Act

There are few provisions related to the women in the Cinematograph Act. Such provisions protect the societal image of women by restricting the portraying of obscene and vulgar scenes in the cinema. Part IV of the Act deals with the objective of certifying the film. It further adds that the board while certifying the film must ensure that the film is of cinematically an adequate standard and aesthetic value and provide a healthy environment to the spectator on being viewed. With regard to the above provision, the board shall keep in mind that the film should not contain such scenes of obscenity, vulgarity that may offend the human susceptibilities. In addition to it, the film containing any kind of scene degrading or denigrating the women shall not be shown. The scenes containing rape or any kind of molestation should be avoided. In case of the necessity of the film, such scenes shall be minimised by the Board. Similar provisions go with the sexual perversion or sexual violence scenes. If the exhibitor violating such grounds skips the certification from the board and exhibits the film he shall be liable for the punishment. There are several other legal provisions that prohibit the portrayal of women in such a way that it degrades her image.

The Indecent Representation of Women Act, 1986

The Act was brought in order to restrict the indecent representation of women in any kind of advertisements, publications, writing portrayal, or any kind of manner which degrades the image of women in the society. Section 2(c) of the Act provides the broad meaning of “indecent representation of a women” as the depiction of the body part of women, or any kind of figure or form that is indecent, derogatory and denigrating women, or it is likely to deprive the public morality or morals. Further Section 4(c) of the Act provides that no person shall produce any film having an indecent representation of women in any form wherein such respect the provisions of Part II of the Cinematograph Act 1952 shall be applicable. However, Part II of the Cinematograph Act provides that the applicant or exhibitor seeking the certification for UA (unrestricted) or A (adult) has been certified despite obscenity in the film, the exhibitor shall not be liable for punishment under the provisions of obscenity for the material contained in the film. The main motto is to censor the films containing the scenes derogatory to women as well as the public morality.

Hicklin test a British era tool for testing the obscenity

The foundation grounds of obscenity were laid in Section 292 of the Indian Penal Code. The Section was framed under the British regime where the law was enacted keeping in mind the grounds of Christian morality where sex is equated with sin and considered as inherently dirty.

The authoritative text for a scene or material considered obscene or not, the Hicklin test, a British era precedent, was commonly used in colonial India. The Hicklin test was adopted by the Queen’s Bench in Regina vs Hickin to test the obscenity. However, the Hicklin test came to be used by different courts until post-independence to define the obscenity till in the Ranjit Udeshi vs State of Maharashtra case where Justice Hidaytullah modified the Hickin test. He stated that sex and nudity in the art and literature were not merely enough to be considered as evidence of obscenity. Later, the Supreme Court in different cases started adopting the modified version of the Hicklin test in the Ranjit Udeshi case. Later, the Supreme Court formally abandoned the Hicklin test in the Aveek Sarkar vs State of West Bengal case adopting the modified and liberal approach used by Justice Hidaytullah in the Ranjit Udeshi case. A similar approach was adopted in K.A Abbas vs. Union of India where the Apex court was determining the prior restraints on the cinema under the Cinematograph act. The movie “A tale of four cities” was challenged because it showed the life of people of brothels in four cities namely Bombay, Delhi, Calcutta, and Madras. Justice Hidaytullah again used a similar approach as used in the Ranjit Udeshi case and found nothing obscene in the film. So, the apex court has used the broader liberal approach while determining the obscenity related to women and has exempted it on the basis where such scenes either depict as the art or showing the reality of contemporary society.

Section 292 of the Indian Penal Code

Earlier, Section 292 of the Indian Penal Code 1860, was a British Indian law that came back in 1860 to put a bar on the obscene publication and the selling of such kinds of books. This was a stringent law during that time where the mere obscenity was a ground for the punishment under the act. Later on, in the Ranjit Udeshi Case where the Hicklin test was eased off, the provision of Section 292 was amended in 1969. Now, the “whole work” of the author or artist, publisher was taken for considering the obscenity. The term “public good” was inserted as a defence for the person who is accused of obscenity. Materials kept for the bonafide purpose and artistic purposes, or any ancient monuments or sculptures were exempted from the purview of “obscenity”. The provision for the imprisonment was also increased from three months to years in the first conviction. Subsequent conviction shall attract five-year imprisonment.

Other laws

In order to put a bar over the broadcasting of obscene, nudity, or pornographic material degrading the image of women in the society, several other bills were proposed but unfortunately, they never came into function. The Broadcasting Service Regulation bill was proposed in the year 2006 with the provisions regarding the quality transmission of the materials on air. The channels broadcasting the obscene materials were barred from transmitting such materials on air. The bill stayed defunct as it never came into force.

The Cable Television Networks (Regulation) Act, 1995 also prohibits the broadcasting of any kind of obscene materials on air by the cable television networks.

Similarly, Section 67 of the Information Technology Act 2000 contains the provisions for publishing or transmitting any kind of material which is lascivious or obscene and its effect is such that it is tend to deprave the persons who shall watch, read and hear such kind of materials shall be punished under the said provision with the imprisonment for a term of 3 years and fine 5 lakhs which may extend up to % years and 10 lakhs on the subsequent conviction. However, due to the non-implementation of such policies in a stringent way by the government, obscene materials still flow in electronic form on the internet.

                    

Online streaming and censorship

In the recent era, internet speech increased after 4G speed (LTE network) was launched in 2012. This provided the online movie and shows websites like Netflix, amazon prime, alt Balaji to come in the Indian market where the customer can access the web series, movie, shows sitting at home. The sudden rise of such websites brought a huge flow of obscene materials in the film industry. Most of the web series launched at such websites included abusive contents, nudity, and open portrayals of indecent images of women. Sacred Games, Mirzapur, and Leila are some of such web series which have been launched on the online web platforms. However, broadcasting of such web platforms is neither subject to any kind of censorship nor broadcasting limitations. The lack of proper provisions and restrictions provided the opportunity to such web platforms to spread the obscenity degrading not only the image of women but also the public morality. Article 19(1) of the Constitution of India provides freedom of speech and expression. However, the government has the power under Clause 2 of the same Article to put restrictions of any kind which can threaten the integrity, unity, sovereignty, decency, and morality by making law or any existing law.

So, the Article is providing a shield to the web platforms to circulate any kind of web series containing indecent things that denigrate the image of women and are a threat to decency and public morality. The movies which are released in cinemas are censored through the CBFC under the Cinematograph Act whereas the web series or movies released over the web platform are not subject to any kind of censorship provisions as provided under the Cinematograph Act. So, the producers and the exhibitors are preferring the way to skip censorship by releasing their movies on the web platforms. The increasing viewership of such web platforms has diminished the objective of the Cinematograph Act. The Government needs to bring broadcasting regulations putting restrictions over the web platforms showing obscene cinema material.

Conclusion 

Women in our culture are considered as goddesses. The framers of law had the idea regarding the rich culture of women and they knew that the degradation of public morality shall destroy the society. Cinema has a strong communication influence over the youths, children in society. The Cinematograph Act was brought in order to put restrictions over the portrayal of any kind of obscenity degrading the image of women as the youth generation has the psychological impact of cinema over the mind and the nudity, obscene scenes or the sexual violence shown in the cinema not only degrades the morality of the society but it also increases the crime against the women in the society. The patriarchal approach of the CBFC in censoring the movies and the inapplicability of the Censorship Act on the online web platform has increased the obscene materials in the cinema world. The government needs to implement the laws under the cinematograph act and the other similar in a stringent manner so that the obscene material spreading in the cinema market can be restricted.

References


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