Unrestricted viewing   April 2011

The recent Delhi High Court gave a far-reaching judgement on a case regarding censorship of the documentary film Had-Anhad (Bounded-Boundless), about the poet Kabir. The Central Board of Film Certification (CBFC), commonly known as the Censor Board, had ordered four cuts in the film, on the grounds that these sections allegedly promoted communal disharmony. Yet on 9 March, the High Court granted the film a ‘V/U’ certificate of unrestricted viewing by the CBFC, without ordering any of the excisions. The justices also ordered the respondent, the Union of India, to pay the petitioners costs of INR 10,000 within four weeks.

 

The judgement has once again brought into focus the issue of censorship in India. In the aftermath of the court’s decision, Film Southasia spoke to filmmaker Rakesh Sharma, whose film, Final Solution, on the 2002 communal violence in Gujarat, faced similar problems with the Censor Board. He has since been at the forefront of the campaign against censorship of documentary films.

 

What is the importance of the judgement in the Had-Anhad case? 

First, the judiciary has once again upheld the right to free speech, as it has consistently done over the course of the last two decades in most cases filed by documentary filmmakers. In fact, this judgement quoted many past cases, and ruled that mere apprehension of a law-and-order problem is not grounds to justify censorship. The court has used very clear language, saying that an anticipated danger should have ‘proximate and direct nexus’ with the expression that is sought to be suppressed, that it should be ‘inseparably locked up with the action contemplated like equivalent of a spark in a powder keg’. 

 

On the film itself, the court ruled that it lends democratic space to the ‘speaking subject’ and the ‘citizen viewer’ to engage in a civilised debate on issues that are perceived to be contentious. In a resounding statement upholding the content and thrust of the film, the court said, ‘A viewer who stays to see the film till its end is unlikely to be left feeling hateful or vengeful towards any religion or community.’

 

This is the latest of a long series of similar judgements?

The courts have repeatedly been placing more and more restrictions upon the kind of interpretation that the Censor Board has been engaging in when ordering cuts or refusing certificates to films. A number of Anand Patwardhan’s films faced this problem – among others, Father, Son and Holy War, and War and Peace. Then there was Aakrosh by Ramesh Pimple, my own film, Final Solution, and now we have Had-Anhad. These cases can be used as precedents in similar situations, but in a limited manner. 

 

What I would hope for is firm directions to the Censor Board from the courts, laying down general directions, and preventing them from using their interpretative powers so broadly. All of these judgements have come on the basis of an appreciation of the kind of films they were, and are specific to the films. To my knowledge, there is no case of a film in which the judge actually disliked the film and yet upheld its right not to be censored. But whether the film is ‘good’ or ‘bad’ is not the point – it is the freedom of expression that must be upheld. 

 

There is another violation of a fundamental right with regard to film censorship. We are guaranteed equality before law. If I post the same video on Youtube, and it is seen by a far greater number of people than I may attract for screenings of my film, or if a TV channel were to screen a film as a ‘special report’, there would be no censorship. Thus, filmmakers are being discriminated against; surely, this is a violation of the right to equality before the law. 

 

The cases you have mentioned seem to be those in which the Censor Board has clamped down on films that question a fundamentalist view of religion. Is that the main problem?

Actually, I would like to put the whole issue in a larger context. First, we need to look at the issue of whether there is a need for censorship at all. Many of us believe that, in a civil society, there is no space for censorship. However, we also need to be mindful of the actual social reality, and the spaces within which we exist and negotiate. It is undeniable that we are becoming an increasingly intolerant society. This intolerance has only grown over the last quarter-century, on the back of divisive identity politics. Thus, we have many civil-society groups that argue for more state control, for more censorship, more regulation. And such a viewpoint has takers on both sides of the political divide. Religious fundamentalists of course want to snuff out any contesting viewpoints, but a progressive feminist group might also ask for more censorship, because they want to control images denigrating women. 

 

What is needed in such a situation is a mechanism to arbitrate, because there are bound to be civil-society grievances that need to be heard. Otherwise, they will find some other outlet, like when a bomb was planted in a cinema hall to protest the screening of a mainstream feature film like Jo Bole So Nihaal, which allegedly denigrated Sikhs. Or political party cadres may attack a cinema hall. We need to create a mechanism where it is not the political class that intervenes in matters of free speech. 

 

But doesn’t such a mechanism already exist, namely, the Censor Board? 

Yes, the Censor Board today has that right, and my argument is that it should not. It should be nothing more than a rating agency. Why can’t we have a Film and Television Council, along the lines of the Press Council, to look into such matters? It could have a retired judge and members from the profession on the panel. Such a body would be much better equipped to handle matters. 

 

Today, the Censor Board, by its very nature and composition, is incompetent to interpret the rights guaranteed in the Constitution and the law, and to rule on that basis. When you want to impose an exception, you should err on the side of caution about such an imposition. The tendency of the Censor Board has been to cut first, and answer later. The Censor Board has a huge load – hundreds of films come to each of its regional boards every year. Its members also have little professional competence to adjudicate on such matters – they include housewives who like films, aides of politicians and such people. 

 

Only if a dispute arises should it be referred to the Film and Television Council, or whatever body is created. Censorship is something that should be contemplated in the rarest of rare cases. Since this body would only have to review a limited number of films, and the members would have the professional ability to look at legal issues as well as an understanding of the medium of film, they would be able to take reasonable decisions.

 

Why should documentary filmmakers bother to get a censor certificate at all? Most such films never go in for general release. 

As per the current law, to screen a film or sell copies through a retail outlet of any kind, one needs to get the film certified. I thought very carefully about why I needed to go for a censor certificate for Final Solution. When you run into problems with a censor certificate, there is a delay of three to four years. But during that period, a film can circulate anyway. So I used a dual strategy. While the film awaited a censor certificate, I also circulated it widely, said that there are no fees for exhibition within India, and encouraged people to make copies and distribute them freely. This ensured that the film was being widely seen and discussed.
 

My reasons for applying were threefold. First, we had many problems during screenings, with the police coming in and stopping the screening, or attacks by groups such as the Hindu Jagran Manch. People who were showing the film were being threatened with legal action. Why endanger those who are organising screenings? A censor certificate serves as protection, a kind of insurance, against this type of thing. 

 

Second, given the organised political opposition to the film, there was a danger of cases being filed in multiple courts across the country. Besides, the film dealt with matters that were under judgement at the time. Getting a censor certificate was also a strategy to ward off legal harassment. Once the Censor Board has certified the film, if cases are filed against it, one can successfully argue in a higher court that the lower court had neither the right nor the jurisdiction to interfere. 

 

Third, and this is vital, it is not enough to say that censorship is ridiculous – one must engage and demonstrate this. The whole effort to get a censor certificate can generate a vital debate on the issue. What is the point of getting upset and agitated about the issue within a very limited circle of likeminded people? If we have to combat censorship, this has to be done in the realm of public opinion. If most documentary film-makers start applying for censor certificates and it becomes clear that large numbers of films challenging, say, religious fundamentalism, are being denied certificates on specious grounds, there would be added momentum to the argument that censorship needs to be done away with. 

 

Is there any situation in which censorship is justifiable?

The two cornerstones of the debate on censorship have been pornography and hate speech. Proponents of censorship argue that there would be a massive rise in both these if there is a free-for-all kind of situation. But there is a free-for-all anyway! Take hate speech. Video CDs of the Vishva Hindu Parishad video-film, Ram Sevak Amar Rahe were sold all over all the country – by the VHP’s own admission, in the millions. There was no censorship here, when it can be argued that these constituted hate speech. Or take pornography – it is easily available in the marketplace and online. These things flourish, but documentary and feature filmmakers are pushed into a corner. This situation needs to change.

 

A number of tricky areas remain, which need to be carefully negotiated. As I said earlier, India is an intolerant society, and this intolerance is growing. We, even the progressives among us, also seem to want a situation where our right to free speech should not be affected, but we should have a right to ban others. If one defends free speech, however, one must support the right to free speech of those whose views might seem repugnant.

 

Tapestry offers articles that come up in the course of the work done by Himal’s partner organisations. This piece comes from Film Southasia.