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K.A.Abbas v. Union of India: The Complex Relationship Between Indian Cinema and Censorship

Freedom of Speech and Expression is one of the most sacrosanct rights guaranteed by the Constitution of India. It is also regarded as an integral concept in most of the modern democracies across the globe. Cinema is a mode of expression of thoughts, ideas, and views, and being the part of Article 19(1)(a) of the Indian Constitution it enjoys protection as conferred. However, the reasonable restrictions as imposed on Article 19(1)(a) can similarly be imposed on the mode of expression Cinema. Restrictions on Cinema are articulated under The Cinematograph Act under which all the guidelines of certification as well as provisions to avoid arbitrariness are mentioned.

In India, Cinema is regulated by The Cinematograph Act, and a regulatory body called The Central Board of Film Certification is set up according to the Act which primarily takes the task of certification of films for public exhibition. Thus, it can be said a body of rules and regulations are set but to date, the arbitrariness and impartiality prevail, and the judiciary here plays as a legal protector to uphold the rule of law and provide justice.

Citation: Year of the case- 24th September 1970
Appellant- K.A. Abbas
Respondent- The Union of India & Anr
Bench: Chief Justice Hidayatullah, Justice Shelat Mitter, Vidyialingam, and Ray.

Acts Involved- The Constitution of India,
The Cinematograph Act 1952.

Important sections- Article 19(1) (a) of Indian Constitution
Section 5-B (2) of The Cinematograph Act 1952

Film broadcasts have been the major source and medium to amuse, entertain, depict, delight, And capture the souls of society since their very inception. Unavoidably, we can call cinemas The ideal machinery for a paradigm shift in the community and ultimately in the world at Large. Although cinema is one of the most vital sources of amusement and thrill for the maximum Number of people in society, being the primary medium of expression and enjoying its periphery under the scope of one of the most celebrated fundamental rights prescribed under Article 19(1)(a) of the Constitution of India, it is still bound and restricted and is kept under Check through reasonable restrictions by enormous legal provisions, including Article 19(2),Article 19(4) of the Indian Constitution of India, Section 5B and Section 4 of the Cinematograph Act 1952, and by its regulatory body like the Central Board of Film Certification.

Cinema has unavoidably and undeniably contributed to the economic and Cultural affairs of the country and has been acting as the parens patriae as well as one of the Most essential elements for maintaining and balancing the status quo of a peaceful society And the environment. It is the most commonly used medium of expression where the Utilisation of rights is done for the maximum number of people by a single medium.

The particular case of K.A. Abbas v. Union of India Is the landmark case with the Clarification of ambiguity with regards to most of the most discussed and talked about, i.e., The burning issue of the validity of pre-censorship in cinemas, which arose with the inception Of the movie "A Tale of Four Cities," and resolving the same with the contention and Scholarly judicial interpretation by the hon'ble bench headed by the then Chief Justice, Justice Hidayatullah in the Supreme Court of India. The particular case analysis highlights the major legal provisions and gets going with the full Length of the questions, deliberations, discussions, and contentions put forth in reaching the End decision.

Background Of The Case
We are very well acquainted with the facts of censoring, gagging, repressing, muting, and Restraining some or more parts of the films by different nations to scrutinise and ban the Movies that are ubiquitously harming the social, cultural, economic, as well as political Sanctity of the country issues and which may promote or spread hatred to the society among the people at large, for example, communal violence, sentimental hurt, etc., as justified.

In the abovementioned case of K. A. Abbas v. Union of India, the appellant filed a judicial Writ petition under Article 32 of the Constitution of India to secure the right of freedom of Expression enshrined under Article 19(1)(a) of the Constitution of India. Through this Particular writ petition, the petitioner additionally demanded issuing guidelines against the Pre-censorship guidelines by the Board, which are only applied to films and not to other Means of communication, like the movie 'A Tale of Four Cities' in a short span of time.

Facts Of The Case:
The petitioner, K. A. Abbas, was a journalist, playwright, author, as well as a film maker who was GD Khosla Film Censorship Committee's member established in 1969 and who directed This film called 'A Tale of Four Cities', popularly regarded as "Chaar Sheher Ek Kahani," Which depicted the conflicting manner of living of some portion of people which depicted the conflicting manner of living of some portion of people belonging to those Four metropolitan cities in contrast to the sumptuous lives of them, including Bombay, Madras, Calcutta, and Delhi at a later period.

The petitioner wanted the 'U' certificate, which means unrestricted permission for every Group and class of society to watch the movie, which was in disagreement with the Central Board of Film Certification's notion. The contrasting opinion between the petitioner and the Board seismically quivered the Indian judiciary's contentions about the attenuation of the Right to freedom of expression by pre-censorship involvement in this contentious film release.

Although the appellant was given an alternate option to amend and rectify certain parts of the Movie, but the petitioner did not find the grounds for rejection of granting 'U' certification For the movie and was not convinced to slit the censored part of the movie, finding it Unreasonable, unjust, and arbitrary of the board.

The movie tested the Censorship Committee's political liberalist claims along with creating a shock wave in the judiciary by questioning the relationship between fundamental rights and the Cinematograph Act, 1952. The film had scenes portraying the red-light districts in Bombay which proved to be the most problematic for the Censorship Board and the Judiciary. The director was adamant that the scenes had to be shown, at least with a 'U' certificate, if not without any restrictions at all.

The Censor Board's Examining Committee proposed that a 'U' certificate be granted only if the public viewing was restricted to an audience of just adults. An appeal was filed thereafter, to which the court responded with an order recommending a 'U' certificate if some scenes from the red-light area, which depicted immoral trafficking, economic exploitation, and prostitution, were cut. The petitioner filed the present petition contending that his freedom of speech and expression was denied, that the provisions of the Cinematograph Act, 1952 were unconstitutional and void and that he was denied the 'U' certificate that he was entitled to. Meanwhile, the Central Government agreed to grant the 'U' certificate without demanding any cuts to be made in the film.

The petitioner then requested to be allowed to amend his petition in light of the altered situation, which was accepted by the court. The petitioner then contended that the provisions of the Act and the power is given to various authorities and bodies under the Act were vague, arbitrary, and indefinite and also questioned the purpose of pre-censorship.

Issues Raised:
  • Whether the introduction of the concept of pre-censorship is violative of the freedom Of speech and expression prescribed under Section 19(1)(a) of the Indian Constitution?
  • Whether even if there is legitimate restraint on freedom, it must be exercised within The definite principles with no scope of arbitrariness or not?

Related provisions

Cinematograph Act, 1952 - Section 5B:

  1. A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of the sovereignty and integrity of India the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offense.
  2. Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition. This provision gave the Central Government the power to issue any such directions as it may think fit to preserve "decency and morality."

    In contrast to the purpose of the provision, in the present case, the Central Government in the exercise of its power under section 5B of the Act, issued orders on the 3rd July 1969 further restricting granting of the 'U' certificate than was necessary. The general principles which are stated in the directions given under section 5B (2) seek to do no more than restate the permissible restrictions as stated in clause 2 of Article 19 of the Constitution.

Article 19 of Constitution of India

Article 19(1)(a) of Constitution of India, it mentions that all the citizens of India must have the freedom of speech and expression, however, under clause 4 of Article 19 of Indian Constitution, reasonable restrictions can be imposed in the interest of public order or morality or sovereignty and integrity of India. In the instant case, the petitioner argues whether the restrictions can be imposed by granting of 'A' certificate to the film and it was held by the Apex court that these restrictions can be imposed in the interest of public order, peace, and security.

Related Case Laws:
In another case of Bobby Art International v. Om Pal Singh Hoon,the hon'ble court said, "The film must be judged in its entirety from the point of view of its overall impact. Where the theme of the film is to condemn degradation, violence, and rape on women, scenes of Nudity and rape and the use of expletives to advance the message intended by the film by Arousing a sense of revulsion against the perpetrators and pity for the victim are permissible".

Sree Raghvendra Films v. Govt. Of Andhra Pradesh
The release of the movie "Bombay" Was censored by the government, exercising the power under Section 891 of the Andhra Pradesh Cinemas Regulation Act, 1955, on the grounds of hurting the emotions of a Particular community in the society, although certification was given by the Board. The Hon'ble Supreme Court declared the order impugned and arbitrary, not given on any justified Ground, as nothing in the movie was to be restricted.

Arguments By Petitioner:
The petitioner and the director, K.A. Abbas, put forth four arguments, which were mainly:
  • Pre-censorship goes against freedom of speech and expression.
  • The legitimate restraint on freedom must be based on very solid and definite principles, not on abstract or vague ones.
  • A reasonable time limit is fixed for the decisions of the authorities in censoring a film.
  • The decisions regarding censorship should be taken up by a court or tribunal and not the central government.

The Board of Film Censors had refused to grant a 'U' certificate for the short film A Tale of Four Cities". They mentioned that a few scenes like where red light district of Bombay was shown with inmates of the brothels waiting at the doors and windows wearing abbreviated skirts showing bare legs up to the knees and sometimes above them and also the exchanging of currency from the woman's hands made the short film unsuitable for the unrestricted public exhibition. On challenging the case went in the ambit of central government.

While the case was pending before the Supreme Court, the central government accepted to give 'U' certificate on a condition to provide certain cuts. But when the disputed short film was screened specially for them, the government agreed on giving a 'U' certificate without any earlier mentioned cuts. The government also claimed that the doctrine of "void for vagueness" applicable in U.S. could not be applied in India as it was adopted as a part of due process.

Decision And Case Analysis:
The landmark judgement by the hon'ble Supreme Court of India in K.A. Abbas v. Union of India, 1970, was pronounced by the hon'ble then Chief Justice Hidayatullah and the bench, Accompanied by Justice Shelat, Justice Mitter, Justice Vidyialingam, and Justice Ray. The Court, being in opinion of censorship or pre-censorship in movies, clarified that this is Justified in the light of Article 19(1) of the Indian Constitution and is applied to secure social And moral justice in society.

It was held that censorship of art must be made for the interest of social and moral justice. It was said that censorship did not offend right to speech and expression and task of censor being extremely careful could not be subjected to an exhaustive set of commands and prior ratiocination. The decision was based on constitutional interpretation of article 19(2) of the Indian constitution. It was held that pre censorship was justified and constitutionally valid as it was covered under the ambit of article 19(2) and, therefore, it did not violate the provision of freedom of speech and expression under article 19(1)(a).

Also the classification and certification of films into the categories of 'U' and 'A' films was justified and reasonable. The court, therefore, held that censorship of the films, classification in different ways like age group and suitability for unrestricted exhibition with or without excisions was regarded as a valid practice in public interest, morality, etc. This practice did not offend the freedom of speech and expression.

The hon'ble justice limpidly opined that the pre-censorship is nowhere violating the Fundamental rights of any citizen, including the right conferred under Article 19(1)(a) of the Indian Constitution, which talks about freedom of speech and expression, as the specific Restriction by the board on the particular is constitutionally valid in the arena of reasonable restriction mentioned under clause 2 of Article 19 of the Indian Constitution. So, the hon'ble Supreme Court rationalised the concept of pre-censorship of artistic work by citing logic that "pre-censorship or prior restriction is simply one component of censorship in general Censorship in the interests of decency and morality, etc., is constitutionally sound in India Under Article 19(2) of the Constitution; consequently, pre-censorship is also constitutionally Valid."

If pre-censorship is analysed on the pedestal of restricting one of the most enjoyable Fundamental rights, i.e., freedom of speech and expression, it becomes "far easier for censors To do the same thing with a pen or scissors than it is for government officials under a prior Restraint system since they don't have to go through the lengthy and costly process of Litigation.

The "pre-censorship system also lacks the procedural safeguards of a criminal Prosecution, such as the assumption of innocence, stricter standards of evidence and process,And a heavier burden of evidence on the state. As a result, under a system of pre-censorship, The censor has far more latitude to trample on the right to free expression."

Moreover, the principle of pre-censorship is not open to public discussion, so there is a high Possibility of prejudice, bias, and ambiguity. Respectively, "the policies and procedures of Licencing bodies do not receive as much people's attention as they should, and the grounds For administrative action are less likely to be recognised and challenged as they should.

The insertion of the concept of prior censorship acts as a pre-vaccination for Some catchy disease and fits in the square of the proverb "Prevention is better than cure," but Here all the censored parts of the movies by the concerned board may not prove to be disease Or obscene to society as it might be arbitrary due to a lack of public judgement or comment case of Bhushan v. State of Delhi, "the Chief Commissioner of Delhi had Violated the East Punjab Security Act by ordering the printhead, publisher, and editor of and English-language weekly journal called the 'Organizer' to report all communal issues, news, and views about Pakistan, besides those deduced from legitimate sources, to be scrutinised in duplicate before publishing in the Organizer."

The hon'ble court held the restriction on the press here to be unjustified and. unreasonable.Correspondingly, in the opinion of the Hon'ble Supreme Court, the Cinematograph Act, 1952's restrictions are valid on artistic works, like films, for manifestation to the public at large, and the present petition was rejected, citing that "pre-censorship fell within the reasonable restrictions allowed under freedom of speech and expression and that the Act provides a means and arrangements to avert arbitrariness in the exercise of powers conferred.

Legal Aspects
In the case it was said that pre-censorship is just an aspect of censorship and in motion pictures pre-censorship hold the same significance just as censorship is significant after the running of that motion picture. The only difference between the two is that of the stages. It was also mentioned that censorship exists everywhere but the degree varies.

Reasonableness of Film censorship
Many reasons were given so as to give the decision. The main contention was that motion pictures have a greater impact on its viewers than other medias like portraits or books, etc. This happens due to its three dimensional effects and visuals that they are more relatable for the audience. Also it has the tendency to affect the tender and mouldable mindset of children in a great way. The children also perceive things differently from a mature elder person. This justifies the age wise classification.

Censorship is equally valued in all the mediums like books, newspapers, etc. But censorship in other mediums than film censorship is done after they start running. In this context the following case is relevant: R. Rajagopal v. State of Tamil Nadu where the petitioner sought issuance of an appropriate writ under Article 32 of the Indian Constitution restraining respondents from taking any action from interfering with the publication of the autobiography of condemned prisoner named Auto Shankar in their magazine called Nakkheeran.

Auto Shankar was charged and tried for six murders and was sentenced to death and his plea for mercy petition was lying pending to the President of India. He had written his autobiography which set out his close nexus with various IAS, IPS and all and he wanted to get it published, his wish to get it published was fulfilled by the said magazine. When the said officials got to know about the publication, the prisoner was subjected to third degree methods to ask the petitioner not to publish his autobiography.

The relevant issue in present context was whether the freedom of press guaranteed by article 19(1)(a) entitle the press to publish such unauthorised account of a citizen's life and activities and can it such publication be censored if it is defamatory for the person mentioned in it? It was held that publication could not be censored just on a presumption of defamation of someone.

Though defamation was covered as an exception to article 19(1)(a) of the Indian constitution under article 19(2) of the Constitution but still a newspaper column could not be pre-censored and censorship was definitely an option after the publication. Also it was not feasible to find out what would be published in a newspaper until it is published and mainly stories are covered by small newspaper which makes it quite difficult to pre-censor them.

So from the above case we can make out that pre-censorship is mainly related to motion pictures for they reach a wide audience and hence this needs regulation

By reading the case with respect to today's scenario, it can be concluded that films are one of the mediums of portraying a mirror image of the society. The concept of pre-censorship had been introduced just to make sure that the content which goes in front of the audience does not inflict any kind of hatred, fear, anxiety or is not a portrayal of nudity out of context.

The Central Bureau of Film Certification (CBFC) should make sure that they don't use censorship as a tool to deprive the general public from knowing the truth and real facts. Censorship must be used as a very narrow spectrum so that a lot of space is left for the creativity and ideas to flourish in the films. Right to freedom of speech and expression is a fundamental right guaranteed to every citizen of this country and thus the filmmakers must also have the freedom to express their art also in a manner that may not be liked or supported by the government or some radicals and staunch minds who refuse to accept the change in the ways of society.

It has been rightly said by Justice D.Y. Chandrachud that Indian democracy gives the right to free speech which is not conditional to the views which may be palatable to mainstream thought and dissent is the quintessence of the democracy. Thus, CBFC should try that a situation does not arise where the courts have to step in as a saviour of freedom.

Mainly if a film is seen as a whole and not only considering a particular scene, one can make out the context in which that scene has been put in. So to it can be concluded with a line that the way beauty of literature lies in the ability of its writer to criticise crotchet around similarly a filmmaker must be given the audacity to criticise the malpractices he witnesses in the society through his films.

To make the censorship laws effective all the time, government must update these laws from time to time so that they don't become obsolete with time and there is no anomaly in decided what actually needs to be the point for consideration. The Central Bureau of Film Certification must also include some filmmakers so that their ideas could be taken into consideration to decide the best policies and it becomes easier to resolve the conflicts arising from the guidelines of censorship.

  2. H.M. Seervai, Constitutional Law of India Vol. (1991) Tripathi, Bombay
  3. Bruce Michael Boyd, "Film Censorship in India: A Reasonable Restriction on Soli Sorabjee, Law of press Censorship in India (1976)
  4. D.D. Basu, The Law of Press of India (1980)

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