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--------------- Print Magazine --------------
  May 2016
  April 2016


Re-Visit Age-Old Certification Norms

Hemant Kumar, Advocate
It is wisely said that every Law needs to be dynamic and evolutionary as with changed circumstances and contemporary challenges, any Law duly enacted in the past tends to become obsolescent. Political or societal compulsions apart, there ought to be a periodic and timely revision (not just piece-meal amendments) of Laws especially those enacted years back as is the case with our over six-decade old Cinematograph Act of 1952. Whatever be the real reasons which prompted the Central Government’s recent move to wake up and examine issues of certification under the Act, it is nevertheless a glorious tribute by the Government in a year when we are celebrating centennial celebrations of our Indian Cinema.

On January 23 this year, just hours ahead of the release of Kamal Hassan starrer much-awaited movie " Vishwaroopam " , the same was banned by the Tamil Nadu Government in the State for two weeks citing "law and order" reasons in the wake of protests by some Muslim outfits. Although the producer of the film did move the Madras High Court and was even successful in getting an interim order with a Single-Judge Bench staying the ban but that proved to be short-lived as just hours later the First Bench (a Division Bench) of the Court restored the same after the State government filed an appeal in this regard. Finally, the movie was cleared for release after its makers agreed to make changes to seven scenes following a State government-brokered meeting between representatives of the movie and the outfits. Nevertheless, the limited ban on the much-hyped spy-thriller triggered a nationwide condemnation coupled with whole-hearted support for Hassan, who had even threatened to go on a self-imposed exile following the politics over his film. It is quite another aspect that elsewhere in the country wherever the movie hit the silver-screen in its original/un-edited version, there were no protests witnessed during its screening.

Pertinent to mention that on January 24 itself, a Bench of the Supreme Court comprising Justices P Sathasivam, JS Khehar and Vikramjit Sen had dismissed filmmaker Sohan Roy's petition challenging a further extension of the ban by the Tamil Nadu government on screening of " DAM 999 " in the State. According to Roy, the movie is an emotional thriller and tribute to the souls lost in the world's worst manmade dam disasters and that it has nothing to do with the Mullaperiyar dam, an issue in dispute between Tamil Nadu and Kerala.

But Justice Sathasivam said " Legally you may be right. We are not underestimating your right..If there is a law and order problem, what will happen? You have already exhibited the film in other States. The Court cannot ignore the apprehensions expressed by the State and consider only individual rights. The Tamil Nadu government says if the film is released, relations between the two States will be affected. When an elected government raises this issue, can the Court ignore [it]?" .At this stage, why should we aggravate the situation not only in Tamil Nadu but also in Kerala? We can't close our eyes to the objections and decide the case purely on legal aspects. We have to respect the sentiments of the people."

The above cited instances apart which are quite recent, in the past too we have been witnessing similar kind of cases where for one reason or the other, the scheduled release or screening of certain movies has hit roadblocks owing to vociferous protests carried out by either a particular caste/community or religious sect over certain dialogue(s) /reference(s)/scene(s) carried within the same and sometimes even upon its title which at times are branded as 'disgraceful' or 'objectionable' and upon which our duly elected State governments, perhaps deeply worried not about the creation of law and order problems or communal tension but owing to the apprehension of inviting wrath from that very caste/community/sect which might tend to affect its petty vote bank, decide to impose a ban upon it either permanently or for a specified time within their respective jurisdictions. A number of times, the matter reaches Higher Judiciary particularly the Apex Court for its adjudication notwithstanding the fact that the Censor Board after due examination has already certified the movie for public exhibition in the country.

Amidst all such unwarranted furore generated in such unsavoury situations, anyone would simply argue that when a statutory and duly constituted body under the Cinematograph Act, 1952 viz. the Central Board of Film Certification (CBFC) has cleared a movie for due screening within the country, then the State Governments have no authority to impose a ban over its release and especially when it is done only for petty personal, political or allied reasons.

Against the backdrop of controversy surrounding Vishwaroopam, Union Information and Broadcasting Minister Manish Tewari tweeted: Time-cinematographic act revisited to ensure implementational integrity (of) certification decisions, otherwise each state would be its own censor (board)." [Posted on the social networking website Twitter ] .

In this respect, it is noteworthy to mention here that although "Sanctioning of cinematograph films for exhibition" is at Entry 60 of List I (Union List) of Seventh Schedule to our Constitution, at the same time at Entry 33 of List II (State List), it is mentioned "Theatres and dramatic performance; cinemas..." which means States are also empowered to suitably legislate over the same although the exercise of the same power is subject to the former.

Perhaps, for this very reason there is a law prevailing viz . Tamil Nadu Cinemas (Regulation) Act, 1955 which provides full powers to the State government to effect such ban. Hence, it would not be possible for the Union Government to simply control or restrain the State governments from imposing such kind of ban or gag orders by carrying out any amendment(s) in the Cinematograph Act as any amended/new law would remain subservient to constitutional provisions regarding distribution of law-making powers to the Union and the States.

One must recall that the Union Information & Broadcasting Ministry keeping in mind the changed film viewing habits in 2010 then under the charge of Ambika Soni had itself prepared a draft for the Cinematograph Bill, 2010, which was to replace the 60-year-old Cinematograph Act, 1952, but for reasons best known to the incumbent Government, the same is yet to see the light of the day.

The draft Bill envisages issuing certificates to movies making them eligible for viewing for 12-plus and 15-plus age categories keeping in mind the sensibilities of the viewers to different levels of language, content, nudity and violence. The other categories retained were 'A' for viewers above 18 years of age, 'U' certificate for unrestricted exhibition that is suitable for children even below 12 years and 'S' which is restricted to viewing by members of any profession or any class of persons.

Further on February 4, the Union Ministry of Information & Broadcasting constituted a panel under the Chairmanship of Justice Mukul Mudgal, retired Chief Justice of Punjab & Haryana High Court to examine issues of certification under the Cinematograph Act, 1952. The Committee comprises Lalit Bhasin, Chairperson of Film Certification Appellate Tribunal (FCAT), Leela Samson, Chairperson of CBFC, Javed Akhtar, renowned writer-lyricist and Sharmila Tagore, former Chairperson of CBFC and noted actress of yesteryears.

Amongst the terms of reference of the above panel include reviewing the mandate and functioning of CBFC in line with contemporary requirements of certification, notably, requirement of special categories of certification for the purposes of broadcasting on television channels and radio stations, to review working of FCAT so as to make it more efficacious appellate body and examine the role of Central Government regarding sanctioning of cinematograph films for exhibition particularly in view of the respective powers possessed by both the Union and the States under different Entries contained in the Seventh Schedule to our Constitution as discussed above and above all to make the Cinematograph Act much more stringent so as to effectively tame instances of piracy, camcording in cinema halls and interpolation in certified movies.

Currently, under the present scheme of affairs, there is no CBFC certification required for Television Programs and Serials although under the provisions of Cable Television Network (Regulation) Act, 1995, Content/Advertisement Code has been prescribed for programs and advertisements appearing in Cable TV network. But the offences under the ibid Act being non-cognizable, a specific complaint has to be made by an officer authorized by the appropriate government.

In this regard, the furore witnessed last year over the telecast on a private television channel of Ekta Kapoor's " The Dirty Picture " for its 'adult content' merits due reference. Though scheduled to have its satellite premiere on April 22 last year, at the eleventh hour, a directive from the Union Information and Broadcasting Ministry stayed its broadcast. There were issues regarding whether such a film can be telecast in the prime time slot even though it had suffered 59 cuts. The Ministry asked the producers and the channel to air it after 11p.m. but the latter were not in favour of doing so. Ultimately, the movie was premiered on the channel over four months later in August after the two sides arrived at a compromise with its TV version cut by 11 minutes to make it suitable for family viewing. Noteworthy to mention that the movie was too much critically acclaimed and even bagged three National Awards.

Further, as everyone would agree that in the present era of Information and Communication Technology where the strength of surfers/viewers of Internet in general and of users of social networking sites in particular is increasing manifold with each passing day, every such netizen has also become both a composer/director as well as a viewer as he/she irrespective of age can create/upload as well as watch/download just any type of MMS/Video etc., over the web coupled with its sharing amongst his/her fellow mates along with its easy dissemination.

Then, even if "A" Certification is granted to a movie before its release in Theatres or Video/Digital format, now-a-days, the full version of the movie is easily available on YouTube etc. Amidst all this, the strict enforcement of censorship norms in letter and spirit appear to be a distant dream, if not simply unfeasible.

Finally, it can be concluded that although the initiative of the Central Government to constitute a panel as referred above is a welcome move, the same ought to have been done much earlier but at the same time, there is also an urgent need to revisit the over six-decade old Cinematograph Act itself as it seems to have outlived its utility. Further, there cannot be a second opinion that the present state-of-affairs warrant urgent reviewing of prevalent censorship norms/categorization of films with respect to Indian Cinema as with the considerable advancement of technology in recent years coupled with sea change being witnessed in mindset of our contemporary society vis-à-vis its conservative and traditional mindset prevailing at the time of the enactment of the Act.

Having said that, it does not mean that the State should bid adieu to the concept of Censorship as a whole as notwithstanding the existence of Fundamental Right to Freedom of Speech and Expression to every citizen of our country, it is also a constitutional as well as legal duty of the State to provide for an effective and suitable regulatory framework so as to ensure public order, decency and morality in the society with respect to exhibition of motion pictures in the country. As also held by the Supreme Court in 1989 that a movie motivates thought and action and assures a high degree of attention and retention. It makes its impact simultaneously arousing the visual and aural senses. Censorship by prior restraint is, therefore, not only desirable but also necessary.

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