Ananya Misra & Mridul Krishna*
Introduction
Films provide powerful entertainment through stories and visuals, but they also act as a cultural force that reflects and shapes societal norms and public opinion. Because of the societal impact, cinema has always been subjected to regulatory scrutiny before it is made available for public consumption.
Freedom of speech and expression, guaranteed under Article 19(1)(a) of the Constitution of India (hereinafter referred to as ‘the Constitution’), is the cornerstone of democracy, which can only be restricted by “reasonable restrictions” under Article 19(2) of the Constitution. To ensure that there is no arbitrary restriction on an artist’s freedom of expression through films, the Central Board of Film Certification (hereinafter referred to as ‘CBFC’) was set up under the Cinematograph Act, 1952 (hereinafter referred to as ‘the Act’). It grants certification for public release of a film.
However, a conundrum arises in India, wherein despite receiving certification from the CBFC, films face regional bans when state governments restrict screenings within their jurisdictions. In India, the Union List provides the authority to “approve films for public viewing” to the Union government. Hence, the CBFC, a Central Statutory body, should have the final decision, but the problem arises as the State List provides the State the power to regulate matters related to “Public Order” and “Theatres and dramatic performances”. States misuse this overlap to issue regional bans on films certified by the CBFC, undermining the clearance by the CBFC.
In this article, we shall first delve into the central government’s role in film certification to understand the limited scope of the State governments and secondly deal with the issue of state-enforced bans on films certified by the CBFC and the implications of such bans. We conclude by providing solutions against arbitrary executive encroachment on film screening in India.
Central Government’s Role in the Matter of Certification of a Film
Originally, Section 6(1) of the Act allowed the central government to exercise broad revisional powers over the decisions made by the CBFC. This executive veto significantly undermined the statutory independence of the CBFC. The first challenge to this executive iThe in the inteThe intervention was in the landmark case of K.A. Abbas v. Union of India (1970 SC).
The film ‘Char Shaher Ek Kahani’ received an “Adults Only” certification, which was challenged. In the said challenge, a contention was raised that the concept of pre-censorship violated the freedom of speech and expression, specifically under Section 6 of the Act. Supreme Court upheld the constitutionality of pre-censorship, but scrutinised the Central Government’s revisionary power over its own CBFC. This catalysed an amendment to Section 6(1) of the Act and led to the creation of an independent, quasi-judicial body, the Film Certification Appellate Tribunal (FCAT). The tribunal was constituted to hear any matters challenging the Board’s certification.
However, despite the Tribunal’s constitution, the final say remained with the Central Government. This led to a challenge to the amended Section 6(1) before the Karnataka High Court in M. Shankarappa v. Union of India (1990 Karnataka HC). The High Court held the section to be unconstitutional as it was violative of the Doctrine of Separation of Powers, since the Central Government had the power to scrutinise a quasi-judicial body’s decision, thereby violating the Basic Structure Doctrine. This decision was delivered by the Supreme Court, holding that once a statutory expert board certifies a film, its decision is not subject to executive scrutiny.
State-Imposed Bans on Certified Films
Even though M. Shankarappa curtailed Central executive overreach; State Governments routinely circumvented this restriction by imposing regional bans on certified films, citing imminent threats to “law and order”. Various instances of state-imposed bans on CBFC-certified films were witnessed in India.
In Prakash Jha Productions & Anr. vs. Union of India & Ors (2011 SC), the Supreme Court addressed this stratagem. In this case, the Uttar Pradesh government had imposed a ban on screening of the film, ‘Aarakshan’, because the film’s release would create public turmoil and contended that by way of Section 6(1) of the Uttar Pradesh Cinemas (Regulation) Act, 1955, the government could intervene to stop the screening of the film. This section granted the State the power to suspend the exhibition of a film when a film being publicly exhibited could likely cause a breach of the peace. The Court dealt in detail with the macouldof state-imposed bans on CBFC-certified films and held that a film is “publicly exhibited” only when it is displayed for public consumption. Hence, the State government cannot exercise its extraordinary power over a film that has yet to be exhibited publicly. The Court clarified that an opinion as to the “likelihood of breach of peace” cannot be formed at this stage without screening the film.
Therefore, as the film was not “being publicly exhibited” in theatres in U.P., the power of suspension vested in the government could not be used to prohibit its screening. The Court also held that “suspension “is a temporary phase, which is abolished to restore the previous position.
Similar provisions exist in different state laws to suspend the exhibition of films likely to cause a breach of the peace, based on which, despite the clear ruling of Prakash Jha, similar bans on CBFC-certified films continued to be imposed.
In 2018, several state governments banned the release of “Padmaavat” , and in Punjab, the Akal Takht imposed a complete ban on “Nanak Shah Fakir”. In both instances, the Supreme Court criticised the opposition to screenings and reiterated that state governments cannot restrict the screening of a film once it has been certified by the CBFC. More recently, in 2023, the West Bengal Government imposed a ban on “The Kerala Story”, which was stayed by the Supreme Court. Importantly, these rulings established that a state government cannot surrender a “heckler’s veto”, holding that it is the duty of the State to preserve law and order and protect the rights of the filmmaker, once the film has been certified by CBFC, rather than choking free speech to appease lawbreakers.
Implications of Unlawful State-imposed Bans
Despite settled judicial precedent since the Prakash judgment, over 15 years ago, and a lack of statutory backing, regional bans on CBFC-certified films have been continuously imposed. When state governments ignore the law laid down by the judiciary and impose such bans, the consequences extend beyond that one movie release. The extra-judicial bans have serious legal, economic, and cultural ripple effects.
By disregarding the decisions of the Supreme Court, state governments undermine the credibility of the judiciary and have been under pressure from the protesters. The States, by yielding to the threat of public disorder, set a dangerous precedent. It sends a message to various pressure groups that using violence is a feasible way to censor art. As a result, the State’s machinery is forced to monitor creative expression rather than targeting lawbreakers, thus establishing the heckler’s veto.
Independent regional bans adversely affect release schedules and marketing campaigns, causing huge revenue losses to filmmakers. A recent example is the ban imposed by the Karnataka Government on the film “Thug Life”, which resulted in an overall loss of approximately ₹30 crore. Monetary losses due to regional bans also lead to unpredictability due to higher insurance and distribution costs, which discourages investors and producers from investing in a film.
Apart from suffering direct financial losses, such illegal bans cause filmmakers to avoid dealing with politically sensitive or socially important subjects. This results in self-censorship, which in turn indirectly violates freedom of speech and expression.
Safeguards Against Arbitrary State-Imposed Film Bans
To deter future executive overreach and protect fundamental rights, institutional safeguards are required.
A strict statutory timeline must be established for deciding challenges to film bans. High Courts should be required to hear and decide on state-enforced bans on films within a strict 24- to 48-hour window to mitigate immediate commercial damage. However, given the backlogs within the High Courts, it is not feasible to expect such results. An independent body, such as the FCAT, could handle such issues. However, pursuant to the Tribunals Reforms Act, 2021, the FCAT was abolished, and its appellate jurisdiction was transferred to the “Concerned High Courts”. While this was framed as an administrative rationalisation, it has created an institutional vacuum. For efficient, quick solutions to such bans, the legislature should consider reinstating the FCAT, which was designed to handle emergency filings. The FCAT consisted of industry veterans and legal experts who could adjudicate such disputes quickly, affordably, and efficiently.
As an alternative structural reform to the revival of FCAT, India could draw inspiration from American jurisprudence. In the United States, film ratings are managed by the Motion Picture Association. This is a private trade organisation, consisting of major film and streaming studios, such as Netflix, Disney, Paramount, etc. This organisation grants certification to films for public release. The process is completely privatised and free from state censorship, and any state interference is subject to strict constitutional scrutiny under the First Amendment of the US Constitution. India could consider privatising or decentralising the certification process to reduce political interference and executive overreach.
An important aspect that States miss out on, while issuing such bans, it is that, by the Cinematograph (Amendment) Act, 2023, Section 6(2) was added, allowing the Central Government to decertify or suspend a film’s exhibition for up to two months due to complaints regarding public order or national security. This is a restricted power granted to the Centre; consequently, States should not obstruct releases in advance. Instead, the State, on the other hand, shall use its police power to suppress rioters, not creative expressions of the filmmaker. States shall create a standard protocol for police protection for the screening of certified films and to impede threats.
To ensure compliance with judicial decisions, Courts can hold state officials in contempt when they violate established Supreme Court precedent by issuing such unlawful bans. Issuing contempt proceedings might deter the State governments from issuing such bans. Furthermore, to deter unlawful bans, state governments should be held financially liable for the losses incurred by filmmakers due to unlawful bans.
Conclusion
A challenge against the ban imposed by Karnataka on the movie, “Thug Life”, was heard by the Supreme Court, wherein the Court stated that “groups of hooligans cannot be allowed to decide what gets screened” and that the rule of law dictates a film must be released once granted a CBFC certificate. Once a film undergoes the framework for film certification, provided by The Cinematograph Act, 1952 and executive interference has to be strictly restricted. The States’ powers to regulate films, in order to maintain law and order, are limited, specifically after the Cinematograph (Amendment) Act, 2023. The States have to exercise their powers in line with the statutory provisions and the judicial precedent established in Prakash Jha. Arbitrary or politically motivated bans are not only unlawful but also violate artistic freedom and cause financial loss to filmmakers. Therefore, reforms are essential to protect certified films from unlawful executive overreach, to preserve freedom of expression and the rule of law.
* The authors are fifth-year law students at Dr. Ram Manohar Lohiya National Law University, Lucknow. The authors may be contacted at ananyamisra2004@gmail.com and krishna.mridul3108@gmail.com.
This blog reflects the personal views of the author and does not necessarily represent the views of The Policy Chronicle.