The Courts Can Tame the Censors, the Constitution Demands It

For far too long, the censors have run amok. But, soon, films may be free.

Censor board chief Pahlaj Nihalani who come under heavy criticism for cuts in films. (Photo: Facebook/PahlajNihalani)

Rinse, repeat. Rinse, repeat. Our censors’ persistence is indeed remarkable.

Despite getting a bloody nose from the courts on numerous occasions, they insist upon muzzling, with missionary zeal, film-makers’ freedom of expression.

However, if the Delhi High Court rules completely in favour of a documentary film-maker’s writ petition, both the government and the censor board might find the wind knocked out of their sails.

This is because the censor board has always relied on ‘Certification Guidelines‘ for culling films, and now, the constitutionality of those very guidelines has been challenged. The case assumes particular significance because recently, Pahlaj Nihalani, in an interview to The Indian Express, voiced his intention to “reinforce” these guidelines.

• Censors attack Kashmir documentary, but let off a Bollywood blockbuster.
  
• CBFC is supposed to certify, but it censors by stealth.
  
• Censorship guidelines violate the Constitution.

Pankaj Butalia won an initial round of litigation when in May this year the Delhi High Court directed the censor board to clear his documentary on Kashmir, Textures of Loss. Butalia argued that the guidelines stray far beyond the limits permitted by the Constitution. And, on 19 November, after hearing multiple rounds of arguments, a Division Bench of the court reserved its judgement on the release of Butalia’s documentary, while arguments on the challenge to the Guidelines are to be next heard on 16 February 2016.

Screengrab from Pankaj Butalia’s documentary Textures of Loss.

Father’s Anguish is “Seditious”, Courts Should Back Off

The censor board and its appellate body – the FCAT (Film Certification Appellate Tribunal) – had demanded two cuts in Butalia’s documentary Textures of Loss.

The first one is a scene in which a scroll shows that in 2010, the armed forces used “disproportionate force” in quelling a “stone-throwing Intifada” by agitated Kashmiris, most of them youth and teenagers. The latter pelted stones to vent their anger and frustration; the soldiers replied with a volley of bullets, felling 102 lives. The censors wanted “disproportionate”, (but not “intifada” – which is laden with a much more powerful political meaning) to be beeped out because otherwise it would “demoralise the army,” rendering them incapable of properly fighting militancy.

The second scene is an interview with a man whose eight-year-old child, desperate to pick up pears for himself, unknowingly walked into a curfew and was killed by soldiers who mistook him for a suicide bomber. His father, who brought back his only son’s corpse with its head crushed and jaw shattered by rifle butts and jackboots, is seen wailing and uttering a curse in Kashmiri. It translates to, “This kind of India should be damned!” This expression of a grief-stricken father, the censor board contends, amounts to “sedition”.

A mother mourns her son’s death in a still from Pankaj Butalia’s documentary Textures of Loss.

In its May judgement, the Delhi High Court snubbed both these contentions and directed that the documentary be given clearance. But the government remains obstinate; instead of complying with the ruling, it has decided to appeal. What appears baffling is that it has taken the very same arguments which the court had rejected earlier.

And perhaps, as if to cover up for this fault, the government has advanced an alarming contention.

Accusing the court of meddling in the Executive’s affairs, it has contended that the censor board should have the last right to decide whether a film or documentary should be cleared for public viewing.

This, despite freedom of expression being a Fundamental Right under the Constitution. It is the judiciary, and not the government, that has the ultimate prerogative to decide. This is something the Constitution itself lays down, not something born out of judicial fiat.

The government’s plea, if accepted, would come as a sledgehammer blow to years of established judicial precedent.

There are many instances of the judiciary coming to the rescue of film-makers – KA Abbas, Anand Patwardhan, Raj Kapoor, Shekhar Kapur are glowing examples – and now all their hard-won victories would be ground to dust.

An 8-year-old boy killed in a stampede in Kashmir in 2010, being readied for burial. (Photo: Reuters) 

Censorship in the Guise of Certification

Going strictly by nomenclature, the guidelines are supposed to be a lodestar, not some gospel which is binding upon the censors. And, the censor board has an official name — Central Board of Film Certification (CBFC). But, from time to time, the board has invoked these guidelines to muzzle filmmakers by denying a Censor Certificate. And without one, no filmmaker is allowed to publicly screen a film or documentary.

As for Pankaj Butalia, if he is not allowed to show his documentary in India, he might just upload it on the Internet, which is what he told The Quint when this correspondent spoke to him after the 19 November hearing.

Censoring Guidelines: Absurd and Unconstitutional

Butalia is more concerned about Article 19(2) of the Constitution, which mandates that the State and its agents can curtail the freedom of expression, but only within the limited scope of “reasonable restrictions”, of which there are only seven grounds.

The censor board’s guidelines enjoin upon the CBFC to “ensure” that the “modus operandi of criminals are not depicted”, or double entendres which “obviously cater to baser instincts” aren’t used, children aren’t depicted as victims of violence, and so on and so forth. Butalia argues that a plain reading of Article 19(2) will make it obvious that the guidelines openly violate it.

Worse, they result in what he calls “crude absurdities” in his writ. For instance, if Dev Anand’s Guide or Jewel Thief were to be remade today, would they pass muster if the guidelines are to be strictly followed?

Moreover, the rules of censorship make no distinction between films and documentaries. The former mostly depict fiction, or fictionalised reality, but most political documentaries depict the stark truth.

He refers to the fate of his own documentary – the scene of the grieving father, which the censors insist is seditious. In contrast, he says, the very same Board gave a free pass to “Haider”, a Bollywood fiction film, in which the central character stands in the middle of Kashmir’s Lal Chowk and vents rage against the Indian state and its people.

Shahid Kapur delivers an incendiary speech in Lal Chowk, Srinagar in a scene from Haidar. (Photo: YouTube screengrab)

This isn’t the first time the guidelines have come in for criticism. Way back in 1968, the Enquiry Committee set up by Parliament stated in no uncertain terms that it is impossible to lay down absolute and universal standards for certifying films and that it would be dangerous to lay down guidelines to determine what can be shown or uttered on screen.

“In a dictatorship, censorship is used; in a democracy, manipulated.” veteran Polish journalist Ryszard Kapuscinski had once commented. In India, tales of the censor’s dictatorial conquests – in almost every sphere spanning from candyfloss romances to political films to the depiction of historical fiction – are legion. Both the past and the present bear witness to this fact.

Will the Delhi High Court finally free films and cinema vérité from the jaws of the censors’ caprice?