This article is written by Nancy Goyal.

Introduction 

Cinema is a great medium for the communications public at large. In terms of its performance cinema has clutched the space within and outside the human mind. It is surprising to know that within few years of its appearance the medium has swiftly excluded through the corners of the open edge of mass publicity through its performative system.

Films have always been concerning a most powerful medium of expression. It is stationarily accepted that cinema is a form of speech & expression. It cannot double that motion films are the most important medium of communication. They may affect public attitudes and behavior in numerous ways i.e., in negative or positive ways. Motion pictures are the best way to express public opinion. They are not the only mode of entertainment.

If we see other media sources such as newspapers, books, and radio cinema play a relative role in circulating the ideas. The impact of cinema is more than other mediums. The impact of cinema on society is unbelievable. Cinema has the power to mold the morality and habits of the youth which cannot be avoided. Although to the same extent cinema is commercial but, an effective agent for the circulatory idea. So as cinema plays a vital role in circulating the ideas towards the society, it should have given some legal protection of freedom of speech and expression in any constitution.

Perhaps, this is the areas on that restricting a movie gives us a question that do we have the freedom of speech & expression, a fundamental right that grants expression of one’s own opinion & ideas freely through writing, printing, pictures, or any other mode. Some nations provide constitutional protection movies against pre-censorship and some of these do not provide any protection to a cinema but consider their right of freedom of speech and expression by exhibiting them.

The pre-censorship is done under the provision of the central board of film certification (CBFC).

History: CBFC

The CBFC could be a governmental regulatory body for the Indian filmmaking trade, popularly called censor board, it had been discovered of cinematography act of 1952. Cinematic graph act came into existence in 1920, when the first film (Raja Harishchandra) was released in 1934. India censor boards were placed underneath the police chiefs in cities of Madras (now Chennai), Bombay (now Mumbai), Calcutta (now Kolkata), Lahore (now Pakistan), and Rangoon (now Yangon in Myanmar). 

These regional censors were independent. After independence, the self-rule of regional censors was eliminated, and they were escorted under the Bombay of film censor. With the execution of the cinematograph Act in 1927, the board was uniform and rebuilt, as the CBFC censors in 1952. Cinematograph rules were amended in 1983 and since the CBFC censor are known as CBFC.

Restrictions on fundamental right

In India, films are released when they are examined by CBFC. If CBFC finds anything which seems too offensive, vulgar, or violating fundamental rights. So, the board directs the makers to make some cuts in the movie. The restrictions which are imposed must be reasonable, as the restrictions are imposed on fundamental rights. The term reasonable is mentioned in article 19 sub-clause (2) of the Indian constitution act which empowers the judiciary to set in the judgmental over legislative resolve. The supreme court always points that reasonableness will depend on upon facts and circumstances of the case. But the limitation on the right should satisfy the following requirements for its validity.

1) The restriction which is imposed must be by a valid law.

2) The restrictions must be reasonable.

3) The restrictions must be imminently related to the purpose mentioned in 19(2).

The Supreme Court in the case, K. A Abbas V. Union of India, was the first case in which the question related to censorship come to light. In this case, the SC contemplate an important question related to the pre-censorship of cinema films about the fundamental right of freedom of speech and expression mentioned in article 19 (1) of the constitution. The petition, in this case, questioned the decision of CBFC is not to provide a ‘U’ certificate for his movie “A tale of four cities.”

As the petitioner’s wrong was completely correct, the petitioner applied for an amendment sanction him to raise the question of pre-censorship, so that person who has invested money in making films has to know about the importance of the constitutional question. The demand of amendment by the petitioner was allowed for consideration by the Apex Court.

1) That the pre-censorship itself cannot be permitted under the provision of freedom of speech and expression.

2) That even if they were legal restrictions on freedom, it must be based on very definite a principle that leaves no doubt for arbitrary action.

Taking into consideration Hidayatullah, C.J made it clear that censorship of film included pre-censorship is valid in India, as it puts reasonable restriction within the scope of Article 19 (2).

Certificate issued

At present, there are 4 categories, initially, there were only two categories:

1) U (Universal exhibition);

2) A (restricted to adult audiences).

In June 1983 two additional classes were added:

3)  U/A (Unrestricted public exhibition required parental guidelines for children below the age of 12);

4) S (restricted to specialized audiences such as doctors, scientists, etc).

Instead of granting a film with the above four certifications, boards can refuse to certify.

U (Universal exhibition): films with U certifications are universal, which means they can be seen by the whole public. A film with U certification contains some universal content like education, family, action, etc. these films may contain some vulgar scenes (without any nudity and sex scenes).

U/A (requires parents’ advice below the age of 12): films with U/A certification may contain some adult scenes that are not too strong and can be watched by children but under the guidelines of parents. These types of films may contain ordinary content of violence, many scenes with vulgarity (little scene of nudity & sexual details), and muted abusive language.

A (Restricted to the adult exhibition): film with “A” certification is available only for those who have attained the age of majority. These films contain violence, sex acts, abusive languages (words that insult the women are not allowed). Such type of movies is usually re-certified for TV and video.

S (Restricted specialized class): films with “S” Certifications are not for the normal public. Only professional people have permission to watch.

Process for certifying a movie

A particular form of the process is followed by the producer to get his film or video film certified, including the material to be submitted and fees to be paid.

1. An application is submitted to a regional office of the application to certify a film for the public) exhibition in writing. The submission of the form is done within 7 days.
2. On the receipt of film material, stipulated fees, and written is required under the laws, the regional office will form the examining committee to view a film. In the case of a short film, EC will abide by an officer of the CBFC and one advisory panel member, which can be a woman. In the case of a feature film, two of the four persons can be women.
3. After the preliminary viewing, the CBFC must take care that each member reports in writing about their omission, modifications, and which type of certificate will be given. The prepared report is submitted to the chairperson asks the regional officer to start further procedures.
4. Nevertheless, the chairperson can send the film to revising committee on his own at the request of the applicant. Chairperson can approach revising committee within 14 days of the board’s decision. The RC consists chairperson in his absence a board member or member randomly drawn from CBFC or advisory panel none of the members of EC can participate in RC.
5. RC will see the same film print which is shown to the EC without any changes and each member is required to record his judgment before leaving the theatre.
6. So the applicant is notified about the decision of the board, he/she needs to delete the portions and submit them to the regional officer, along with a copy of this film as certified. Before board passes any which may affect the film of the applicant. So, he/she has been allowed to represent his/her views related to directed matter before EC/RC.
7. If the applicant is unhappy with the decision of the board, can appeal to film certifications appellate tribunal headed by a retired judge as a chairperson. This appeal should be done within 30 days of the board’s decision. The film certification appellate tribunal will hear both the candidate and CBFC before going to its final decision.

Principles of CBFC

The central board of film certificate shall ensure the film is:

1) They should judge the movie from every aspect so that it does not hurt any community or any other people’s feelings.

2) They will have to check the movie from everyone’s point of view as it should not affect the morality of the people, they should check that the film is not violating any ancient action or showing fake things about any individual.

3) It should not provocative, vulgar, offensive.

4) It should not violate any of the ‘’Guidelines for certification.”

Moreover, principles of certification for films for the free society should be mandatory to restrict the freedom of one individual so that it should not mix with the freedom of other people. Freedom is very important for Human growth but on the other hand, it is equally important to restrict freedom for interest of society. Ideally, it is important to make a balance between these two competing claims. The range of limitations necessarily depends upon the changing condition of society. 

Indian Constitution, diagnose the need for limiting the utilization of the fundamental rights in the public interest, manifest the state to impose reasonable restrictions on the exercise of the mentioned right. The places on which these restrictions should be imposed are enumerated. It is important to note that this clause does not impose any obligations on the state to impose the restrictions.

The provision is the only liberal. Section 5B(1) of the Act sets out the principles for the guidance in providing a certificate to the film. The section is a model of clause 2 of Article 19. The supreme court while implementing Section 5B(1) of the Act suggested that the absence of the term ‘reasonable’ in this section will not make any distinction at all and the court will not still investigate the reasonableness of the action taken by the Board. The scope and ambit of the places mentioned in Article 19(2) of the Constitution have been judicially described. Since section 5B(1) uses the very same terms, the explanation given to these terms in other cases can be used for describing the scope of the section.

Guidelines for CBFC

• Any scene which will lead to Anti-social activities such as violence should not be shown
• Words that will provoke the people living in the country should not be used or the words which will offend people feeling should not be used.
• The film which includes these three points should be rejected – a) involvement of children in violent acts either as victims or as perpetrators or as forced witnesses to violence, or showing youngsters as being exposed to any type of kid misuse b) Showing wrong against physically and/or mentally handicapped persons and c) unnecessary depictions of cruelty towards animals and their abuse.
• The Pointless or avoidable scenes of violence, inhumanity, and horror, scenes of violence whose main intention is to provide entertainment should not be shown given they can cause viewers to approach towards the violence and in lack of humanity.
• Scenes which have a bad effect on human health & condition should be banned and also alcohol consumptions should not be shown the scenes in which drug addiction is tending to encourage should not be shown in the movie.
• Scenes which will lead to consumption of tobacco, smoking should not be used in movies as it can harm the people health.
• Vulgarity should not be used in the movie as it may offend human sensibilities.
• A concept that will hurt any woman’s feelings in any way should not be used.
• Sexual violence against the woman like an attempt to rape or using vulgar words to abuse any gender should be avoided and if in any scenario it is important to show this type of scene then real name and character should not be used in movies or should be minimized.
• Sexual scenes should not be shown or if showing them is important as per the theme of the movie then it should be minimized.
• Words which is related to any religion and can affect that group of people should not be used.
• Words which will lead to promoting wrong themes and idea in-country should not be used.
• The empire and integrity of India should not be put in doubt.
• The security of the State must not be in suspension or put in danger.
• Other states and foreign states’ relations should not be put in danger.
• Public rights should not be demolished.
• Words that will hurt some individual or any caste or any profession should not be said in the movie.
• Scenes in which court order is not obeyed should not be shown as it can change people’s mindset towards the court in real life, as in nowadays people start relating reel thing in real life. Due to this film should be properly scripted.
• According to Act, 1950 (12 of 1950) National symbols and things related to the nations should not be shown.

Punishment

The CBFC (Central Board of film certification) is responsible for certifying films. If there is any violation of any rule of CBFC, so violators will be punished. Violation of cinematograph act and penalties;

(a) Major violations are-

1) Exhibition of an “A” category movie to minors.

2) Exhibition of ‘S’ category movie against the law.

3) Exhibition of any such movie to those people for which they are not certified such type of violation is known as interpolating.

Interpolate means

(i) Re-insertion of those parts of the movie, which were deleted by boards while certifying.

(ii) Inserting some portions of films, which were not shown to board while taking

permission for the film.

(iii) Exhibition of any film which was not approved by boards.

(iv) Exhibition of the movie which was not approved with a certificate of any other film.

(v) Exhibition of the movie without taking permission from CBFC.

Punishments for violation

• Offenses related to violating the rules of the board are cognizable and they are no boilable.
• The penalties for violating the rules of the board can also be imposed under CA which says when a filmmaker delivers any movie, he/she need to give details related to cuts, length, title, and certification, etc. 
• And penalties’ will be imposed if any filmmaker is exhibiting the movie without giving the details of cuts, length, title, and condition of certification. 
• A person who violates the rule by exhibiting the motion film is punishable with imprisonment on a fine may be charged. Imprisonment will be for three years and may be extended with five of 20,000 and this can also extend to 1 lakh for each day.
• The further trial court can direct the government to forfeit the offending film, any police officer can enter a hall where an offending film is being shown and can seize the films. 

Controversies

• In 2002, the film War and Peace had shown the scenes of nuclear testing, and the September 11, 2001 attacks, created by Anand Patwardhan, was said to make 21 cuts before it was certified for release. Patwardhan protested, saying “the cuts that they are saying to do are silly to such an extent that they will not hold up in court” and “However if we should make these cuts, will lead to end the freedom of expression in the Indian media”. The court rejected the cuts unconstitutional and the film was shown without any cut.
• A film on Indian transsexual produced and directed by Sridhar Rangayan was banned by the Indian Censor board in 2003. The name of the film was “Gulabi Aaina” (The pink mirror). According to the film censor the film contains vulgarity and can offend the feelings of various people of different communities and society. The film is still not released officially in India but shown in numbers of film festivals internationally and won various awards with having a tag of the ban. The people appreciated the movie for its tremendous message towards the community of transsexual people of India.
• A documentary in 2004 whose name is “Final solution”, which looks at the religious fight between Hindu and Muslims, was banned by the CBFC. The movie was showing the 2002 clashes in the western state of Gujarat in which more than 1100 people dead. The censor boards stated about the ban by saying that it can raise too much violence that had been ignored in that clash and may trigger the people for various riots. The bam was finally released in October 2004 after various rallies and campaigns.
• An American film in 2011 “The girl with the dragon tattoo” was demanded five cuts by the CBFC. According to CBFC, the film contains various rape scenes and nudity too, and according to the film director, the film without that demanded 5 cuts will leave nothing for the public to watch. So due to this, the producer David Fincher decided not to release the movie in India. In 2013, director Kamal Hassan’s movie was banned from screening for a short interval of time i.e., for 2 weeks according to CBFC it disobeyed some rule and regulations due to this the movie was not screened for 2 weeks in Tamil Nadu, name of the movie was “Vishwaroopam”
• In 2015 the film “Chaayam Poosiya Veedy” {the painted house} directed by two Babusenan brothers Santosh Babusenan and Satish Babusenan was asked for four cuts in their movie {three visuals and one audio} because this scene was containing the nudity of the main actress. But the director did not accept the demand of the censor board and resulted in the cancellation of their film certificate.

CBFC’s Chairperson Leela Samson resigned from his job in 2015 due to political interference in the work. As she rejected the certificate of MSG, some political party was forcing them to pass the certification. MSG {Messenger of god} film was then sent to the appellate tribunal, and the old chairperson was replaced by Pahlaj Nilani. The resignation of the old chairperson and the joining of the new chairperson within some days led to the resignation of more than half employees of the board. Employees were not happy with the work of the new chairperson, as according to the employee’s chairperson was working under the ruling party’s order. CBFC was trolled on social media for passing the order of two kissing scenes in the movie.

• “UDTA PUNJAB” a film produced by Anurag Kashyap and Ekta Kapoor faced trouble with the CBFC, resulted in re-examine the moral of the film censorship in India. The film whose main motive was to show the drug problem in the state of India but the film has contained many Swearword or bad words and have lots of drug’s scene. The central board of film certification released a list of 13 pointers and 94 cuts, it also includes deleting the name of places of Punjab that has been used in the movie the list was released on 9 June 2016. But the filmmakers appealed this case in Bombay high court and on 13 June the film was cleared by the court with one cut only. The court said that “he is against the claims of the CBFC”.

According to Bombay, high court movie’s main motive is to save the people from drug addiction not to point out the people of Punjab. Thereafter, the film again faced controversy when a small part of the film was leaked on the online site “TORRENT”. The portion that had been released contains a watermark of “censor” on the top corner of the screen raised doubts that the CBFC had leaked the copy of the movie to protest against the filmmakers.

According to the source, the movie contains some scenes which were cut as per the order of the high court. CBFC doesn’t react to these claims and stayed calm, and this all activity led to a tense release, the filmmakers and everyone associated with the required public to watch the movie in theatres. Kashyap itself said that don’t download the movie from online sites until the move releases officially in the theatres, he also added that he hadn’t any problem with illegal downloads an awkward thing a producer can say. After very problems and controversy, the film was released finally and earned over $13 million finishing as a commercial success.

• A very famous movie named Lipstick Under My Burkha that was directed by director Alankrita Srivastava and was produced by Prakash Jha in 2017, also came in the list of the controversial movie and faced an issue while approving the film from CBFC, as CBFC rejected to certify the film for distribution saying that “the story is tending to ladies’ fantasy. They stated that the movie contains sexual scenes, wrong or abusive words, audio pornography and have some words or scenes that will affect some particular section of society. But this movie had been screened in more than 35 festivals worldwide and won 11 international awards, before its release in India, and become eligible for entry in the Golden Globe award ceremony.

The director appealed against the decision of the film certification, which released the ban from the movie, and FCAT ruled over the decision of CBFC and therefore the film released in India. FCAT asked the filmmakers to make some changes in the movie and cut some scenes mainly relevant to sex scenes. The film was released with having ‘A’ or adult certification equal to NC-17 rating of the United States movie included some edits. Srivastava told Agency-France Presses: “obviously I would have adored no cuts, yet the FCAT has been exceptionally reasonable and clear. I feel that we will want to deliver the film without hampering the account or weakening its embodiment.”

Conclusion 

If we the history of films, it would be found that there always one section who will be against the movie. The movie is made to leave a message for society in a positive manner. Further, it depends on society how they take them. 

The present article focuses on the working of CBFC, it means its history, a certificate issued, the procedure for certifying a movie, etc. so to make the concept clear the whole research paper is divided into various tittle. 

Firstly, it deals with the right of freedom and expression and to which extent this right is available for the public. It also deals with the reasonable restrictions which are imposed on the fundamental right and are mentioned under Article 19(2) of the Indian Constitution. The term reasonable is supported by case law.

Secondly, it talks about the history of the Central Board of Film Certification (CBFC). It also deals with which type of certificate is issued as the content of the movie. Thirdly, it deals with the procedure which is followed by CBFC for certifying a movie. 

It also throws some light on guidelines that are necessary for CBFC to follow while certifying a movie. In the end, it deals with the punishment which is given to violators and some controversies related to CBFC. 

Suggestions

• Central Board of Film Certification should be strict while certifying a movie. As some movies are certified by CBFC but lead to a disturbance in society because of their content. 
• Cinema halls should be checked when movies are screened, for crossing checking that movies are screened as to their certificate.
• The last and most important point which has been found in my research is that movies with “A” certificates which are meant for adults are watched by minors. 

The booking clerk gives a ticket to minors in black to earn more money. There is no proof such violators are punished or not. So, there is a need to work on this point.

References 

1. K.A Abbas vs Union of India, 1970SCC.780 see here, https://globalfreedomofexpression.columbia.edu/cases/abbas-v-india/
2. Indian film board clears Lipstick Under My Burkha for release see here, https://www.theguardian.com/film/2017/apr/26/indian-film-board-clears-lipstick-under-my-burkha-release
3. History CBFC see here, https://www.britannica.com/topic/Central-Board-of-Film-Certification
4. UDTA PUNJAB” a film produced by Anurag Kashyap and Ekta Kapoor see here https://www.hindustantimes.com/bollywood/how-cbfc-made-udta-punjab-bleed-here-are-all-the-94-cuts/story-R5V1SvN0IC3aaNUigtUm9M.html
5. https://www.newslaundry.com/2015/10/14/how-is-a-film-certified-by-the-censor-board
6. Process of certification see here , https://www.academia.edu/41614898/GRANTING_OF_CERTFICATE_TO_FILMS_UNDER_CINEMATOGRAPHIC_ACT
7.  In 2002, the film War and Peace see here,  https://www.wikiwand.com/en/Censorship_in_India
8. The girl with the dragon tattoo see here, https://www.scoopwhoop.com/International-Films-Banned-In-India/

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: