Taking on the gatekeepers 

Taking on the gatekeepers 

Context

As long as courts affirm ‘community’ claims, don’t expect the Censor Board to protect free speech

Backdrop

Censor board has constituted a six-member panel was being constituted to review the film Padmavati, before it could be granted a censor certificate and publicly exhibited. Members of the panel include historians as well as representatives of the royal family of Mewar

Author’s contention

Author states that it is highly amusing as to what professional historians have to do with a piece of entertainment that is historical fiction at best, and the retelling of a myth at worst? And why has the royal family seemingly acquired a veto over the clearance of a film?

Task of Censor Board

The task of the Censor Board is to ensure that a film complies with the laws of the land and the guidelines of the Cinematograph Act, a task that does not require it to judge “historical accuracy”, or to subject a film to the scrutiny of self-appointed community gatekeepers. It is a legal and constitutional task, not a sentimental or popular one

Sanctioned by SC
Author points out that the recent approach by CBFC has been sanctioned by Supreme Court itself on a number of recent occasions

• That in order to qualify for constitutional protection, a work must have an objectively defined social value — that is, it must be good for something, whether it is spreading scientific or historical knowledge, inculcating patriotic values, or advocating good social habits
• If the work refers to or is about a certain segment of society, then that segment automatically acquires the power to decide whether or not it has been “offended” by it — a power that is exercised by the self-appointed gatekeepers of the community
  • Example: Jolly LLB 2
    • Huge uproar: Before the film could be released, there was an uproar because it was alleged to have “insulted” lawyers and the legal system
    • Petition filed: A petition was filed in the Bombay High Court
    • Panel appointed by Bombay HC: Ignoring what the CBFC itself had to say about this, the Bombay High Court appointed a three-member panel of lawyers, to “review” the film
    • Apt questions: Where the High Court found the power to do so, and why lawyers were appointed to review a film that satirises lawyers are questions that have no answer
    • In any event, the panel suggested four deletions
    • SC declined to interfere: In the meantime, the producers had rushed to the Supreme Court, which, however, declined to interfere
    • Producers had to accept cuts: Faced with the delayed release of their film, and the possibility of an eventual defeat in the Supreme Court, the producers swallowed their pride, accepted the four cuts, and received clearance for the film in the nick of time.

Underlying idea

The idea underlying the actions of both the court and the Censor Board is that every self-identified “community” – no matter how loosely- or ill-defined – has an automatic right of veto over any work of art, expressed through its self-proclaimed and most noisy gatekeepers.

Against the constitutional idea

Author states that this scheme of things is against the constitutional idea that India is not a nation of individual citizens, but an agglomeration of homogenous, clearly defined “communities”, and that it is these communities that come to be the measure of all values. The Constitution, however, clearly repudiated this view when it placed the individual – and individual rights – at its heart

SC should learn the lesson

The constitutional vision needs to be appreciated by SC which, in 2007, upheld a book ban on the ground that in a country as diverse as India, no community should feel offended or have its feelings hurt. The court didn’t see fit to say that in a country as diverse as India, everyone should learn spirit of tolerance

Obscenity law

Ever since the Supreme Court upheld the constitutionality of obscenity law in 1964, it has given a clear indication that “useful art”, or art that can serve a “social purpose”, may be exempted from the penal consequences of obscenity, or other similar speech-restricting laws. In assessing the famous movie Bandit Queen, for example, the Court pointed out that certain disputed scenes – involving sexual assault – were actually meant to instil revulsion and disgust in the minds of the readers, and in that sense, the film was serving a socially useful purpose in depicting such scenes 

Similar metric for padmavati

If Padmavati, according to the historians, is historically accurate, it will pass muster. But if it is “distorting history” (to echo the most famous complaint against it), then it serves no feasible social role, and the state is justified in refusing it screening permission

Mistake ridden approach

Author points out that there are, however, two serious mistakes in the above approach,

• Who decides? Even if we concede that art ought to have a social purpose (which we shouldn’t), the task of deciding whether a particular work of art is “socially useful” or not will be left to judges who, with the best intentions, will only end up reproducing the dominant conceptions of what is useful
• Future value: There is simply no way of knowing what uses a work might be put to in the future. The Churchmen who sentenced Galileo to house imprisonment were no doubt sure that the Sun revolved around the Earth, and that Galileo’s research, apart from being heretical, was simply useless

A larger battle

We need to remember that it is the Supreme Court which, in the last analysis, sets the norms, principles and values that trickle down the judicial ladder. Consequently, as long as the freedom of speech continues to be treated as a minor inconvenience that needs to be regulated and controlled in the “public interest”, and as long as the court continues to affirm “community” claims as having priority over individual freedoms, we cannot really expect the CBFC to protect free speech in a meaningful way. The battle for free speech must be waged both at the bottom and at the top