OBSCENITY AND CENSORSHIP IN BOLLYWOOD
-Rahul K. Chopra79
India is the largest film producing industry in the world and its cinema is becoming increasingly popular in various countries around the globe. Bollywood is a powerful medium that provides useful and entertaining information on history, civilization, variety of cultures, religions, socio-economics and politics in various regional languages. In the 1990s Hindi cinema was firmly entrenched in the contentious sphere of the political. India’s Censor Board of Film Certification (or the Censor Board as referred to henceforth), historically considered a primary regulatory mechanism of Hindi cinema and the custodian of public morality by both the citizenry and the State, found itself at the centre of a maelstrom of moral panics, escalating Hindu right-wing80protest politics, primarily under the aegis of the Bharatiya Janata Party (BJP) and the extremist right-wing party the Shiv Sena, and repeated State interventions. The rising levels of obscenity in the Indian films, not only pose threat to the foundation of Indian society & it’s cultural and sexual norms recognized, valued and honored of late, but have rather already damaged it enormously, which if not taken care of imminently and that too at war footing by the society, law giving and implementing wing of the state, would disrupt the Indian society forever by giving a death blow to our ageless culture and ethos by opening the floodgates of fornication.
OBSCENITY AND RIGHT TO FREEDOM OF SPEECH AND EXPRESSION
RIGHT TO FREEDOM OF SPEECH AND EXPRESSION
Article 19(1) of the Constitution of India guarantees to every citizen the right to freedom of speech and expression, free speech is the live wire of democracy. Iver Jennings said, “Without freedom of speech, the appeal to reason which is the basis of democracy cannot be made”.81 The social interest in free expression is based on the idea that without expression, there is no society at all, because communication is the very essence of social life.82 One of the main objectives of the Indian Constitution as envisages in the Preamble, is to secure LIBERTY OF THOUGHT AND EXPRESSION to all the citizens.
However, the freedom u/Art 19(1) is subjected to reasonable restriction as provided under Article 19(2) which provides that – Nothing in sub clause (a) of clause (1) shall effect the operation of any existing law, or prevent the State from making any law, in so far as such law imposed reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of Sovereignty and Integrity of India, the Security of the State, Friendly relations with foreign States. Public order, Decency or Morality, or in relation to Contempt of court, Defamation or Incitement to an offence.
As far as bollywood films are concerned, the makers of the movie have essential right to freedom of speech and expression of their art and thoughts, however, the same is subjected to the restrictions under Art 19(2).
The society is now reeling under the impact of unending flow of cinema, story, dance and drama through small screen of television. Pornography is available in its vulgar form in personal computer with World Wide Web. The television with powerful, multi-channel visual splendors is totally occupying young mind. Its utility in educating, informing and news-giving is camouflaged by its misuse in dishing out obscene ad indecent stuff in the name of entertainment.
One of the restrictions under Article 19(2) is decency, morality and public order. The purpose behind this is through this restriction the image of humanity and dignity of women can be sought to be protected in the media projections. The society is bound to decay if high standards of decency and morality are not maintained. So restriction on freedom of speech and expression was put which may otherwise be conveniently abused for deliberately lowering the public morals.83
OBSCENITY AS A GROUND FOR RESTRICTION
According to Oxford Dictionary, obscene means “offensive to modesty or decency expressing or suggesting unchaste and lustful ideas; impure, indecent.”
In Ranjit D. Udeshi v. State of Maharastra84, Obscenity “has been defined by the Supreme Court as „the quality being obscene which means offensive to modesty or decency; lewd; fifty and repulsive”. In this case, the Supreme Court had adopted the age old Hicklin’s test from the famous case R v. Hicklin wherein the court had decided that if any material will be considered to be obscene if it has the tendency to deprave or corrupt the people into whose hand the material is likely to fall. It may also be termed as “the most vulnerable constituency test”.
Over the years, the court realized the basic problems with the Hicklin’s test. There were three major problems with the Hicklin test – the broadness of the terms “deprave or corrupt”; its acontextuality (prosecutions under the Hicklin test would focus on pointing out specific words or phrases that were supposedly obscene); and its focus on looking at the text from the point of view of the people who, in the opinion of the Court, were most likely to be corrupted or depraved –The second of these issues was resolved by the Court in Udeshi itself, when it clarified that obscenity must be tested by looking at the work of art as a whole, and in context.
In Chandrakant Kalyandas Kakodkar v. State of Maharashtra85, the Supreme Court observed that such notions vary from country to country depending on the standards of morals of society. But even within the same country, particularly one as socially disparate and culturally diverse as India, there are widely varying standards of moral acceptability. This makes it extremely difficult to define or straitjacket these concepts.
Indecency is a concept wider than obscenity. Although anything that is obscene must necessarily be indecent,86 what is indecent need not always be obscene.87 In other words while indecent merely means non conformance with accepted standards of morality, obscenity refers to that which has prurient or lascivious appeal.88
OBSCENITY AND VULGARITY
There is a distinction between obscenity and vulgarity. In Samaresh Bose v. Amal Mitra,89 the Supreme Court held: A vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences.90
In Raj Kapoor v. State91 in this case, the Supreme Court was dealing with a pro bono public prosecution against the producer, actor and other connected with a film called “Satyam, Shivam, Sundaram” on the ground of prurience, moral depravity and shocking erosion of public decency. One of the questions considered was : When can a film to be publicly exhibited be castigated as prurient and obscene and violative of norms against Venereal depravity.
Krishna Iyer J., speaking for the court said, “Art, morals and laws manacles on aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because state-made strait jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics. The world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the konaraks and khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and state moralists prescribe paradigms and prescribe heterodoxies”.
Justice Krishna Iyer said, “Going to the basics, freedom of expression is fundamental. The censor is not the moral tailor setting his own fashions but a statutory gendarme policing films under Article 19(2) from the angle of public order, decency or morality. These concepts are themselves dynamic and cannot be whittled down to stifle expression or licentiously enlarged to promote a riot of sensual display”.
BANDIT QUEEN CASE
This film was a subject matter of dispute and the appeal went up to Supreme Court. The Supreme Court upheld the certification of the film for public exhibition on the ground that the frontal nudity of woman and depiction of rape were necessary parts of the theme of the film justifying the criminalisation of a young girl who was brutally hurt by the cruel society.
Explaining Bandit Queen the Supreme Court said: “It is not a pretty story. There are no syrupy songs or pirouetting round trees. It is the serious and sad story of a worm turning : a village-born female child becoming a dreaded dacoit. An innocent who turns into a vicious criminal because lust and brutality have affected her psyche so. The film levels and accusing finger at members of society who had tormented Phoolan Devi and driven her to become a dreaded dacoit filled with the desire to revenge.
It is in this light that the individual scenes have to be viewed. First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of her breast and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly have been better conveyed than by explicitly showing the scene.
The object of doing so was not to titillate the cinemagoer’s lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that the Tribunal, referred to was not at Phoolan Devi s nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shred of dignity. Nakedness does not always arouse the baser instinct”.
The reference by the Tribunal to the film “Schindler’s List” was apt. There is a scene in it of rows of naked men and women, shown frontally, being led into the gas chambers of a Nazi concentration camp. Not only are they about to die but they have been stripped in their last moments of the basic dignity of human beings.92 Tears are a likely reaction; pity, horror and a fellow-feeling of shame are certain, except in the pervert who might be aroused. We do not censor to protect the pervert or to assuage the susceptibilities of the oversensitive. “Bandit Queen” tells a powerful human story and to that story the scene of Phoolan Devi s enforced naked parade is central. It helps to explain why Phoolan Devi became, dacoit what she did: her rage and vendetta against the society that had heaped indignities upon her.93
LAWS IN INDIA DEALING WITH CENSORSHIP ON BOLLYWOOD
CINEMATOGRAPH ACT 1952
The history of the development of the film censorship in India has been admirably performed by the Khosla Committee. Legislation in the shape of amendment of the Act of 1918 and a Production Code were highlights of the progress. In 1952 a fresh consolidated Act was passed and that is the present statutory position on the subject. It establishes a Board of Film Censors and provided for Advisory Panels at Regional Centers. 94Every person desiring to exhibit any film has to apply for a certificate and the Board after examining the film or having the film examined deals with it.
The Act lays down the principles for guidance and for appeals in the section 5B and 5C respectively.
Judicial pronouncements on cinematograph act:
R.K Star Production Vs. Union of India95
It is settled law that a film maker of a film has a fundamental right under Article 19(1)(a) of the Constitution of India. In this case the film had been seen by the Examination Committee in Madras in February 1993, no order passes till October 1993, when the Petitioner approached the court. The court held that the power of the respondent in connection with grant of censorship certificate is coupled with the duty and they are expected to pass orders expeditiously on any application made for censorship of film.
Further it was held that the Court cannot take the role of the Censor board and state whether the picture can be released for public exhibition or not in the absence of any order passes on the application of the petitioner by the petitioner by the respondents under the provisions of Cinematographer Act 1952.96
CENTRAL BOARD OF FILM CERTIFICATION
In India, it’s the Central Board of Film Certification (CBFC). It mainly gives out age-recommendations for movies. These are:
U – Universal: Everybody can watch it without supervision. All ages and whatnot.
UA – Universal with Adult Supervision: Kids can go see it, but they need to be with a parent or adult when they do. In these movies, there could be some sexual innuendo, some tame sex scenes, some blood, and even some cursing.
A – Adults only: You need to be 18 years of age to see this. Disturbing themes lie ahead, so does brutal violence, a lot of swearing, blood and gore, what is described as “Heavy sex scenes” as well as drugs.
S – Specialized: This movie is not for the public. An S-Rated movie might be something like a documentary for doctors that shows an autopsy. Basically, stuff you wouldn’t want to see anyways unless you have a weird fetish or you have to watch it for your job.
The CBFC97 is made up of non-official members and a chairperson. They’re appointed by the central government rather than elected and they sit in nine offices around India. Their headquarters, much like anything movie-related in India, are in Mumbai, though. Currently, a dancer holds the highest position in the CBFC.98 In order for a movie to get any kind of public screening, it must have been approved by the CBFC. So they hold the absolute power on what Indians see in cinemas.
In 1991, the Ministry of Information and Broadcasting of India outlined the tasks of the CBFC as follows. The certification is to ensure that:
(a) the medium of film remains responsible and sensitive to the values and standards of society;
(b) artistic expression and creative freedom are not unduly curbed;
(c) certification is responsive to social change;
(d) the medium of film provides clean and healthy entertainment; and
(e) as far as possible, the film is of aesthetic value and cinematically of a good standard.
K.A.Abbas vs. Union of India,99 The petitioner for the first time challenged the validity of censorship as violative of his fundamental right of speech and expression. The Supreme Court however observed that, pre-censorship of films under the Cinematograph Act was justified under Article 19(2) on the ground that films have to be treated separately from other forms of art and expression because a motion picture was able to stir up emotions more deeply and thus, classification of films between two categories ‘A’ (for adults only) and ‘U’ (for all) was brought about.100
AUTHOR’S ANALYSIS ON CENSORSHIP IN BOLLYWOOD ON THE GROUND OF OBSCENITY
As the Supreme Court of India has rightly pointed out in several cases time and again, the concept of morality and decency is not something that can be put under a strait jacketed formula. It is an evolving concept that has to change according to time and situation of the society. It has to be understood that India is an extremely diverse county and therefore the social situations and conditions are extremely different.
In such a situation, it is rather uncalled for to put a blanket ban or censorship on movie on the ground of obscenity. As a more recent example of movies like Spectre and 50 shades of grey, which were extremely popularized in the western countries but had to face severe censorship in India.
While the concept of putting censor upon politically motivated, religious and violence oriented movies may still be understood on the ground that maybe the uneducated population of India and the vulnerability of the Indian ideologies may still not be mature enough to be able to conjure these ideas.
However, India’s obsession with making a woman’s body and natural sexual acts as a topic to be hushed under covers and “taboo”, something not to be discussed shows nothing but the perverted perspective of the Indian mentality.
The reason why still a woman’s virginity and her body is a topic of public concern is this exact mentality of making it appear to be a topic of public scrutiny at the first place. It is to be understood that art and films are something that shapes the mentality of a generation and their perspectives as well.
At a time when the education ministry is constantly deliberating upon the need for sex education and where the overall culture of the country is modernizing, it has to be inculcated that a body is just a body and there is nothing taboo about it. In its natural state, a body was never meant to be covered, the historical texts and temples itself shows the casual attitude towards such topics in the past.
What is still an alien concept to the Indian society or the social institutions is that it is time when we stop making an issue out of something that is so natural. It is time when we understand and accept that physical appearance or intimacy is as natural as breathing and when this mentality is developed only then can we overcome this tendency of terming every sexual act and every physical aspect as “obscene”.
The courts as well as the censor board has time and again failed to appreciate this difference between obscenity and vulgarity, what many people might consider to be vulgar need not necessarily be obscene as well and it’s time to understand the difference between the two.
Therefore, it is the perspective of the authors that while censorship might be important in some sense as to keep a check that publication is not directly harmful or hurtful to public sentiments, however, the same should not mean to take into consideration that people with extremely sensitive sensibilities are not criteria here. Moreover, the concept of censorship must not turn into moral policing over art. The certification criteria have to be the tool to operate rather than banning of publications.
Censoring movies in the name of maintaining public peace, respecting emotions of people and similar reasons are simply ridiculous. It may give wrong message to the public through indirect interpretation. It is always the best that the viewers themselves watch it and form their own opinion. General public in a country like ours may be devoid of proper education but not always of common sense. It is groups with tampered prejudices who deliberately distort the subject matter and mislead other people to serve their own purposes. Conversely, no group takes the role of a proper guide. Subsequent to an elaborate analysis of all those incidents, judgments and laws, the activities and rationale of having a Censor Board becomes highly debatable. If at all we need to have such a body, it needs to be more autonomous rather than to be a puppet in the hands of the Government.
Besides, scrapping movies regardless of clearance from the Censor Board is not only an arbitrary act but a dangerous trend of heightened intolerance. On a whole, the higher courts in the country have done a laudable job but recurrence of similar issues is the point of debate. Hence, a permanent solution is essential. It is imperative to enact a new law. Therefore, it can be aptly concluded, if democracy has to evolve, that screening of films and documentaries can never be denied for reasons based on mere speculation because banning motion pictures is equivalent to banning the right of freedom of speech and expression. Some developments regarding the topic are encouraging indeed; nevertheless, we have greater heights to scale.
In view of the emerging media and entertainment giants like Hotstar, Netflix, Amazon Prime etc. that are not governed by the existing laws regarding censorship and the acceptance of the same within the public at large reflects the overhaul in the India societal sensibilities and therefore it is imperative to evolve an integrated legal regime that is more tolerant, acceptable and conductive of Artistic representations.