RAJSANKAR JAYAKUMAR

Films in India are regulated by being examined, certified and licensed before being exhibited in public by the appropriate authorities under the concerned statutes. The Constitution of India has empowered the Central Government under List I (Union List) of its 7th schedule to make rules in the matters of giving sanction to cinematographic films for their exhibition. The State Government has the power to make rules with regards to the screening of cinematographic films in a particular state subject to the Centre’s powers under List I of the Constitution. In furtherance of these constitutional provisions, the Indian Cinematograph Act, 1952 was enacted. This central legislation led to the formation of the central body known as the Central Board of Film Certification (CBFC) for the purpose of sanctioning films for public exhibition.
In India the daunting question today is who prevails-the Supreme Court, CBFC or the State? Sanjay Leela Bhansali’s Padmavati is yet to hit the screens, but it has stoked controversies leading to violence, disputes in the Supreme Court and banning of the film in several states across India. Therefore, the law in this regard needs to be analysed as to whether a film, after being given a certificate by the CBFC, can still be blocked from being released in a particular state by the State Government.
The Constitution of India, in its seventh schedule, contains 3 lists- List I (Union List), List II (State List) and List III (Concurrent List). List I and List II give exclusive powers to the Centre and the States respectively to legislate on the entries laid down under the respective lists. Entry 60 of the Union List empowers the Centre to legislate on the subject of “sanctioning of cinematograph films for exhibition.” This entry must be read along with Entry 33 of the State List which allows the states to legislate on the subject of “theatres, dramatic performances and cinemas subject to the provisions of Entry 60 of List I”. However, List III does not at all talk about cinematographic films. Therefore, it is clearly evident that the framers of the Constitution intended to give power of certification of films exclusively to the Centre. If they had any intention of giving both the states and the centre this power, it would have reflected accordingly in the Concurrent List.
The Indian Cinematograph Act, 1952 came to force on 28th July, 1952 with the purpose of legally regulating the public exhibition of cinematographic films. The Act permits the Central Government to constitute the Board of Film Certification which shall sanction films for public exhibition. The person who wishes to exhibit a film must apply to this board, which after examination of such film, may grant sanction for unrestricted public exhibition or, for public exhibition restricted to adults or, for public exhibition restricted to members of any profession or any class of people based on the nature and content of the film. The film is then given certificates of “U”, “U/A” , “A” or “S” accordingly. The Board may even direct the applicant to make some excisions or modifications in the film as it thinks fit or it may just reject the application altogether. The Act empowers the Central Government to establish advisory panels in regional centres as it thinks fit whose recommendations would be taken by the Board regarding any film that has been given a certificate. The Act requires the Board to follow the guidelines laid down under it while certifying a film. Therefore, the Board cannot certify a film as per its whims and fancies. It is also pertinent to note that if the Lieutenant-Governor, or the Chief Commissioner, or the District Magistrate, feel that the public exhibition of a particular film is likely to cause a breach of peace in a Union Territory (UT), State or a District respectively, they may by order, suspend the exhibition of such film in that particular UT, State or District. Such suspension order would be valid for two months from the date of its issuance and can be extended if necessary if the concerned authority is directed to do so by the Central Government. Maintenance of peace and public order is the State Government’s concern and hence, it can always request the District Magistrate of a district within the state or the Chief Commissioner of that particular state over which it has jurisdiction, to pass the suspension order when it anticipates breach of public peace in that particular district or the whole of the state due to the public exhibition of such film.
The freedom of expression, as contemplated by Article 19 (1) (a) of the Indian Constitution, which in many respects overlaps and coincides with freedom of speech has manifold meanings. It need not and ought not to be confined to expressing something in words orally or in writing. Expressing one’s ideas through cinema also falls within the ambit of Article 19 (1) (a). Controversies arise when the State lock horns with filmmakers by imposing restrictions on their films, which in a way, violate their fundamental freedom of expression guaranteed under the Constitution.
In 2005, the movie Black Friday’s release was blocked as it was based on the 1993 Bombay bomb-blasts by the petitions of the persons who were under trial for the bomb-blast case which were filed in the Bombay High Court. The Supreme Court had upheld the High Court’s order and finally it was released in 2007. In 2005, a Mahesh Bhatt film was banned from exhibition due to depiction of smoking and drinking scenes without proper health disclaimers. Even though the Delhi High Court lifted the ban, in 2009, the Supreme Court suspended the order of the High Court. In 2016, Udta Punjab had to be released with several cuts due to the reason that it portrayed the State of Punjab in a very humiliating and false way. Finally, the movie Padmavati, which is yet to be released, has been facing several threats of violence and objections by the Rajput community due to the reason that it desecrates Rani Padmavati, who is a revered figure among the Rajput community, and in turn insults the whole Rajput community by showing incorrect history in the name of artistic freedom. The Supreme Court had dismissed petitions seeking ban of the film on the ground that the petitions were premature and nothing can be done until and unless the CBFC grants a certificate to the film. Recently, the Supreme Court granted an interim stay on the Gujarat and Rajasthan state notifications and the decisions of the states of Madhya Pradesh and Haryana prohibiting the public exhibition of the film ‘Padmaavat’ and refused to hear the PIL filed by Advocate M.L. Sharma seeking the quashing of the certificate issued by the CBFC in respect of the film under S.5A of the Indian Cinematograph Act, 1952.
In conclusion, it is clearly evident that as per the law the Central Government has the sole power of certifying films. The State Government can merely get the screening of a film to be suspended if breach of public peace is anticipated. However, it has no lawful authority to completely ban a film from being screened in a particular state. Hence, it would be wrong on the part of the states which are seeking to ban the film “Padmaavat” from being screened. Moreover, if the government goes ahead with the ban merely because of threats of violence by fringe elements like the karni sena it would indicate that it supports violence and hooliganism. Such fringe elements would rise to power and would simply use violence as a weapon to stop any movie as they wish at any time and this would lead to the fall of the cinema industry and the decline of cinema as a form of art.
Cinema is protected as a form of expression under Article 19 (1) (a) of the Indian Constitution. However, no right is absolute; right to freedom of expression is subject to reasonable restrictions. State is the better custodian of public interest, decency and morality than the film industry. Making of a film is definitely an art but it cannot be equated with other forms of art and expression. It stirs up emotions more deeply and effectively than any other product of art. Entertainment is one of the important underlying objects but it is mainly meant to make the viewers mentally relaxed and joyful and not to render them heavy-hearted, sensually aroused and mentally disturbed which may lead them to indulge in frivolities, perversions and dangerous addictions. Therefore, some amount of regulation is definitely required on films. The Board also must use its powers reasonably and responsibly. The screening of a film can only be suspended in a particular area because of the law and order situation in that area and it cannot be completely banned in the whole state. Such a ban would be illegal. The Board must also bear in mind that it should step in firmly and insist that the film being released has a message meant to improve the values of life and should see that the film contains only such scenes which do not affect the values of life.
The courts, on the other hand, should be cautious and extremely slow in passing any kind of restraint or order stopping a creative man from writing drama, a book, philosophy or projecting his thoughts in a film or theatre art.
The current law on cinematographic films contains certain general principles which are merely meant to make films more socially responsible. They are moreover very much consistent with the permissible restrictions as stated within Article 19(2) of the Constitution. In a complex society, in which we live today, no one can claim absolute freedom without incurring any obligation whatsoever for the general well being. Social responsibility and the greater good for the greater masses is the key that both filmmakers and the State should never forget.

The writer is a law student.