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Freedom of Speech and Expression Vis-À-Vis Censorship

♣Nayeem Akhtar

INTRODUCTION

Freedom of speech and expression is universally accepted as one of the most important

freedoms in almost all modern progressive nations. Several international conventions and

declarations guarantee these rights.1 But these rights are not unrestricted. State can

♣ Author is a LLM student at National Law School of India University, Bangalore 1 Universal Declaration of Human Rights, 1948. Art. 19: Everyone has the right to freedom of opinion and expression; this right includes

freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiers.

International covenant on civil and political rights, 1966: Art. 19: (1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include

freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers either orally, in writing or print, in the form of art, or through any other media of his choice.

American Declaration of the Rights of Man, 1948 : Art IV: Right to freedom of investigation, opinion, expression and dissemination : Every person

has the right to freedom of investigation of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.

American convention on Human Rights, 1969 : Art 13: (1) Freedom of thought and expression : Everyone has the right to freedom of thought

and expression. This right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.

(2). the exercise of the rights shall not be subject to prior censorship. (3). The right of expression may not be restricted by indirect methods or means such as the abuse

of government or private controls over newsprint, radio, broadcasting frequencies, or by any other means tending to impede the communication and circulation of ideas and opinions.

African charter on human and people rights, 1981 : Art 9: 1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law. Rome convention for the protection of human rights and fundamental freedoms, 1950: Art 10: 1. Everyone has the right to freedom of expression. This right shall include freedom to

hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Framework convention for the protection of National Minorities, 1951 : Art 7: The parties shall ensure respect for the right of every person belonging to national

minorities to freedom of peaceful assembly, freedom of association, freedom of expression and freedom of thought, conscience and religion.

European convention on human rights Art 10: Everyone has the right to freedom of expression.

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impose restriction on these rights. The restrictions may be in the form of prior restraint

or may be after the publication of speech or expression. Prior restraint in the form of

censorship is really a big challenge to the right of freedom of speech and expression,

because in such a case, the creativity of author may not see the light of the day.

Generally, states make such laws taking plea of sovereignty of the nation, security of the

state, public order etc. There is no doubt that these grounds are strongly tilted in favour

of the state for making laws and imposing restrictions on the freedom of press or

individual. But at the same time, we cannot ignore the freedom of individual, because

these rights are of paramount importance for all round development of an individual.

Another issue, which always comes into picture while analyzing the validity of

censorship is right of other people i.e. right of the society as a whole. Due to

technological advancement and the emergence of internet, it has become very easy for an

individual to send an e-mail to another person or to post some pictures on website. If

such mail is defamatory or, if such picture is obscene then whether, such person can

claim that it is his freedom of expression. Of course, he cannot. But the real challenge is

how to control such activities? Whether censorship regime will be able to control it? If

the person is ascertained then Courts of which nation will be having jurisdiction over the

offender? What should be the approach of the Courts while allowing Censorship on

freedom of speech and expression? These are some of the moot questions which the

researcher has tried to answer through this paper.

WHY FREE SPEECH AND EXPRESSION

For discovering truth

Historically the most durable argument for a free speech principle has been based

on the importance of open discussion to the discovery of truth. It is evident from the

famous funeral address given by Pericles as back as in 431 B.C. Athenians, he pointed

out, did not consider public discussion merely something to be put up with; rather they

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believed that the best interest of the city could not be served without a full discussion of

the issues before the assembly .2 If restrictions on speech are tolerated, society prevents

the ascertainment and publication of accurate facts and valuable opinion. The best test of

truth is the power of the thought to get itself accepted in the competition of the market.3

The truth would emanate from a 'free trade in ideas' or intellectual competition.

For self -fulfilment

A second major theory of free speech sees it as an integral aspect of each

individual’s right to self development and fulfillment. Restrictions inhibit our personality

and its growth. The reflective mind, conscious of options and the possibilities for

growth, distinguished human beings from animals. Freedom of speech is also closely

linked to other fundamental freedoms which reflect this aspect of what it is to be human:

freedom of religion, thought and conscience. Thus, for full-fledged development of

personality, freedom of speech and expression is highly essential.

It is a democratic value

Freedom of speech is the bulwark of democratic government. This freedom is

essential for the proper functioning of the democratic process. The freedom of speech

and expression is regarded as the first condition of liberty. It occupies a preferred

position in the hierarchy of liberties giving succor and protection to all other liberties. It

has been truly said that it is the mother of all other liberties4.

In a democracy, freedom of speech and expression opens up channels of free

discussion of issues. Freedom of speech plays a crucial role in the formation of public

opinion on social, political and economic matters.

To ensures pluralism

Freedom of speech reflects and reinforces pluralism, ensuring that different types

of life are validated and promoting the self esteem of those who follow a particular

lifestyle. The French conseil constitutional and the Italian constitutional courts have

ruled that the free speech rights of media corporations may be limited to ensure that the

constitutional value of pluralism is safeguarded.

2 Macropaedia, Vol 15, 15th ed p. 620. 3 Abrams vs US 250 US 616, 630-1 (1919). 4 Report of the second Press Comm., vol 1, 34-35.

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Thus we can say that freedom of speech enables the discovery of truth, is crucial

to the working of a democratic constitution, is an aspect of human self fulfillment or

autonomy. It is in the speaker’s interest in communicating ideas and information and

equally in the interest of audience in receiving ideas and information.

THE CONSTITUTIONAL PROTECTION OF FREE

SPEECH AND EXPRESSION IN INDIA

Freedom of speech and expression has been guaranteed under art 19(1)(a) of the

constitution of India. It guarantees to all citizens “the right to freedom of speech and

expression”.

Meaning of Freedom of Speech and Expression

Freedom of speech and expression means the right to express one’s convictions

and opinions by words of mouth, writing, printing, pictures or any other mode.5 The

right to communicate and receive ideas, facts, knowledge, information, beliefs, theories,

creative and emotive impulses by speech or by written word, drama, theatre, dance,

music, film, through a newspaper, magazine or book is an essential component of this

protected right.6 A democratic government attaches great importance to this freedom

because without freedom of speech and appeal to reason democracy cannot succeed.

Freedom of speech and expression includes the freedom of propagation of ideas

and freedom of circulation. In Romesh Thappar vs State of Madras.7 The notification

banning the entry into or the circulation, sale or distribution in the state of Madras or any

part thereof of the newspaper entitled “crossrods” published at Bombay was held invalid,

because “without liberty of circulation, the publication would be of little value”.

5 V.N. Shukla: The Constitution of India, Eastern Book Co., Lucknow, 8th Edition, 1990; p. 105. 6 Lakshmi Ganesh Films and others vs Government of Andhra Pradesh and others, 2006(4)

ALD 374. 7 1950 INDLAW SC 9

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Similarly Government cannot make such laws which have the effect of adversely

affecting business in newspaper. Such laws have to pass the test of Art 19(2) of the

constitution of India. In Sakal Papers (P) Ltd. vs U.O.I.8 the daily newspapers (price and

page) order, 1960, which fixed the number of pages and size which a newspaper could

publish at a price was challenged by the petitioners on the ground that it infringers the

liberty of the press implicit in terms of Art 19(1)(a). Because the adoption of order would

mean, either the reduction in the existing number of pages or raising the price. In either

case, there would be reduction of the volume or circulation of the paper and therefore a

direct violation of the liberty of the press. Madhukar J. Held: “The right of freedom of

speech cannot be taken away with the object of placing restriction on the business

activities of a citizen. It can be restricted only in the interest of the security of state,

friendly relations with foreign states, public order, decency or morality, or in relation to

contempt of court, defamation or incitement to an offence. It cannot like the freedom to

carry on business be curtailed in the interest of general public.

Reasonable Restrictions on Freedom of Speech and Expression

Art 19(1) (a) of the Indian constitution guarantees to all its citizens “the right to

freedom of speech and expression”. Clause(2) of Art 19, at the same time provides :

“nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or

prevent the state from making any law, in so far as such law imposes reasonable

restrictions on the exercise of the right conferred by the said sub-clause in the interest of

the 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”.

The meaning of the term reasonable restriction has been a matter of judicial

discussion. There has been a doubt that whether the term ‘reasonable restriction’ also

include ‘total prohibition’. In A.K. Gopalan vs State of Madras.9 Patanjali Sastri J., Kania

C.J. and Das J. tried to explain the term ‘restriction’. Das J. was of the view that the word

‘restriction’ implies that the fundamental right is not destroyed in entirety but part of it

remained. Patanjali Sastri J. was of the view that the term did not mean ‘total

8 1961 INDLAW SC 429 9 1950 INDLAW SC 42

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prohibition’. Kania C.J. interpreted it as ‘partial control’ and distinguished it from

deprivation. Later the Supreme Court in another decision10 interpreted the term to mean

‘total prohibition’ where the restriction was reasonable. It is submitted that what is

restrained is not the ‘Fundamental Right’ which continues unaffected, but the ‘exercise'

of it. The restriction when it is unreasonable does not affect the right and when it is

reasonable it only restrains the exercising of that right. Such a restraint on the exercise of

the right, when reasonable, may be partial or total.11

Further the test of reasonableness depends upon the nature of the right alleged to

have been infringed, the underlying purpose of the restriction imposed, the extent and

urgency of the evil sought to be remedied thereby, the disproportion of the imposition

and the prevailing conditions at the time of imposition of such restriction.

CENSORSHIP ON FREEDOM OF SPEECH AND

EXPRESSION

To censor is to act so as to change or suppress speech or writing that is

condemned as subversive of the common good.12 But it has been abused a lot by ruling

regime to hide their misconduct. One such example is execution of Socrates in 399 B.C.

on charges that he corrupted the youth and that he did not acknowledge the god that the

city did but other new divinities of his own.13

In China in 231 B.C. blatant oppressiveness, and an attempt to stamp out the

influence of Confucius and other sages, could be seen in the wholesale destruction of

books.14

With the passage of time people became aware of their rights and new principles

of liberty and democracy emerged. The result was more and more freedom to people to

express their views and freedom of press. But still the state can impose certain restriction

on these freedoms. In the upcoming section I will deal with censorship laws in India and

in certain select foreign countries.

10 Narendra Kumar vs U.O.I. 1959 INDLAW SC 61 11 Article 358 & 359 of the constitution of India which deal with the proclamation. 12 The new encyclopedia Brittanica,vol.3,Micropaedia,15thedn.,1991 13 Macropaedia, vol 15, 15th edn, p. 620. 14 Macropaedia, vol 15, 15th edn, p. 621.

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LAWS RELATING TO CENSORSHIP IN INDIA

In India, freedom of speech and expression is a constitutional right guaranteed

under Art 19(1)(a) of the constitution. These rights can be restricted only on the grounds

enumerated under Art 19(2) of the constitution. The grounds enumerated under Art

19(2) are very wide. Here, my endeavor will be discussing them one by one in lucid

manner followed by other legislations which provides for restriction on freedom of

speech and expression.

Security of State and Public Order

The concept of ‘public order’ is wider than ‘security of state.15 Public order is

virtually synonymous with public peace, safety and tranquility.16

The term ‘public order’ covers a small riot, an affray, breaches of peace or acts

disturbing public tranquility. In Virendra vs State of Punjab.17 The law impugned was the

Punjab special powers (press) Act, 1956. It provides for :

1. Prohibition of printing or publication of any article, report, news item,

letter or any other material relating to or connected with ‘save Hindi’

agitation;

2. The imposition of ban against the entry and circulation of the said papers

published from, New Delhi in the State of Punjab.

3. Authorizing the State Government or its delegate to impose pre-

censorship.

The Supreme Court struck the order about ban on entry and held that it was

unreasonable because there was no time limit for the operation of an order made against

a paper and also because there was no provision made for any representation being made

to the State Government. Das. C.J. observed: “If as newspaper is prevented from

publishing its own view or the views of its correspondents it is certainly a serious

encroachment on the valuable and cherished right of freedom of speech and expression.”

15 Romesh Thappar vs State of Madras, 1950 INDLAW SC 9 16 O.K. Ghose vs E.x. Joseph, AIR 1962 SC 812 at 814. 17 1957 INDLAW SC 42

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Pre-publication ban even under a court injunction can be justified in the interest

of justice only when there is a clear and imminent danger to the administration of fair

justice and not otherwise.18

Defamation

According to Winfield: “Defamation is the publication of statement which

reflects on a persons reputation and tends to lower him in the estimation of right

thinking members of society generally or tends to make them shun or avoid him. 19

Defamation under Indian Penal Code has been made an offence.20 Even freedom

of the press does not permit to publish defamatory matter. Similarly section 5B of the

Cinematograph Act, 1952 prohibit exhibition of a film which is defamatory.21

In R. Rajagopal vs State of Tamil Nadu22 the Supreme Court held that neither

the Government nor the officials had any authority to impose a prior restraint upon

publication of a material on the ground that such material was likely to be defamatory of

them. The right to publish the life story of a condemned prisoner, in so far as it, appears

from the public records, even without his consent or authorization has been held to be

included in the freedom of the press guaranteed under article 19(1)(a). No prior restraint

upon such publication can be imposed .Of course, if someone is guilty of defamation,

then subsequent penal sanction can be imposed. It is submitted that penal sanction is

better than prior restraint because the former chills while the later freezes.23 An order not

to publish material means that it can never legally see the light of day, while a publisher

faced only by the prospect of a criminal prosecution may decide to take the risk and

release the work, speculating either that he will not be prosecuted or that a jury may

acquit.

18 Reliance Petrochemicals Limited vs Proprietors, Indian Express Newspaper Bombay Pvt. Ltd.

1988 INDLAW SC 642 19 Winfield and Jolowicz on Tort, 274(1979). 20 S. 4 95IPC. 21 S. 5B(1) of the cinematography Act, 1952 : ‘A film shall no be certified for public exhibition if,

in the opinion of the authority competent to grant the certificate the film or any part of it….involves defamation.

22 1994 INDLAW SC 832 23 The Morality of consent (New Haven, Yale, UP 1975), 61.

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Decency or Morality

One of the exception to the fundamental right to free speech and expression

guaranteed under article 19(1)(a) of the constitution is in favour of laws which impose

restrictions in the interest of “decency or morality”.24

Examples of such laws are as follows:

1. Sections 292 and 293 of the IPC make obscenity a punishable offence.

2. The Cinematograph Act, 1952 prohibits the certification of a film for

public exhibition if the film or any part thereof is against the interest of,

inter alia, morality and decency.25

3. Section 20 of the post office Act, 1898 prohibits the transmission by post

of any material on the ground, inter alia, of decency and obscenity.

4. The Dramatic Performances Act, 1876 empower the Government to

prohibit public dramatic performances on the grounds, inter alia, of

obscenity.

5. Sec. 11 of the customs Act, 1962 empowers the government to prohibit

or impose condition on the import or export of goods in the interest

inter alia, of decency and morality.

6. The Indecent representation of women Act, 1986 prohibits and punishes

indecent representation of women.

7. S. 67 of the Information Technology Act, 2000 prescribes a penalty in

respect of the publication, transmission in electronic form, material which

is lascivious or appeals to prurient interest or has the effect of tending to

deprave and corrupt its likely audience.

Meaning of “Decency” or “Morality”

“Decency” and “Morality” are vague and rather elastic notions that evolve with

time and social change and vary vastly among different cultures. What may be morally

acceptable to one section of society may be outrageous to another.

24 Art 19(2). 25 Sec. 5B of the Cinematograph Act, 1952.

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Indecency and Obscenity26

Used often in the context of “decency” and “morality” is the term “obscenity”

which is expressly prohibited by Sec. 292 of the Indian Penal Code.

Section 292(1) of the I.P.C. defines obscenity as:

“for the purposes of sub-section(2), a book, pamphlet, paper, writing, drawing,

painting, representation, figure or any other object, shall be deemed to be obscene if it is

lascivious or appeals to prurient interest or if its effect, or (where it comprises two or

more distinct items) the effect of any one of its items, is if taken as a whole tend to

deprave and corrupt persons who are likely, having regard to all relevant circumstances

to read, see or hear the matter contained or embodied in it”.

The Supreme Court in Ranjit D. Udeshi vs State of Maharashtra has defined

obscenity as the quality of being obscene which means offensive to morality or decency,

lewd, filthy and repulsive.

“Indecency” is a concept wider than “obscenity”. Anything that is “obscene”

must necessarily be indecent.27 In other words, “indecent” only means non-conformance

with accepted standards of morality, “obscenity” refers to that which is prurient or

lascivious appeal.28

VARIOUS TESTS OF OBSCENITY

Hicklin’s test

Cockburn, C.J. laid down the test in R. vs Hicklin29 as:

“…….I thinks the test of obscenity is this whether the tendency of the matter

charged as obscene is to deprave and corrupt those whose minds are open to such

immoral influences and into whose hands a publication of this sort may fall.

The Hicklin test was based upon the effect of a publication on the most

vulnerable member of society, whether or not they were likely to read it. The defence of

literary merit was not available in this test and the result was passage of the Obscene

26 In general, that which offends the public sense of decency, Micropardia, vol 8, 15th edn, p. no.

857. 27 R vs Greater London Council (1976)3 All ER 184 (CA) at 188-89. 28 FCC vs Pacific Foundation, 438 US 726(1978) at p. 740. 29 (1868)3 3QB 360.

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Publication Act, 1959 of U.K. The definition of “obscenity” in the Act is based on the

tendency to deprave and corrupt the likely audience i.e. persons who are likely to read,

see or hear the contents of the publication rather than those into whose hands the

publication may accidentally fall.

The Supreme Court adopted this test in Ranjit D. Udeshi vs State of

Maharashtra.30 It is submitted that the judgment is contrary to the definition contained in

section 292(1) of the IPC which stresses upon the effect of publication on “persons who

are likely, having regard to all relevant circumstances, to read, see or hear the matter

contained or embodied in it”, and not just on any person into whose hands the

publication may accidentally fall.

The Likely Audience Test

The “most- vulnerable- person” standard laid down by Hicklin was repealed by

the “likely – reader test” recognized under S. 292 (1) of the Indian Penal code. Therefore,

what must be considered is the impact on those who could reasonably by expected to

gain access to the publication.31 This test was confirmed by the Supreme Court in

Chandrakant Kakodkar vs State of Maharashtra.32 The court observed:

“what we have to see is that whether a class, not an isolated case, into whose

hands the book, article or story falls suffer in their moral outlook or become depraved by

reading it or might have impure and lecherous thought around in their minds”.33

Literary Merit and “Prepondering Social Purpose”

Where art and obscenity are mixed, what must be seen is whether the artistic,

literary or social merit of the work in question outweighs its “obscene” content?

The Aversion Defence

Nudity and sexual explicitness do not by themselves constitute obscenity.

Authors and film makers sometimes depict nudity not to arouse sexual desire but on the

30 1964 INDLAW SC 167 31 R. vs O’Sullivan, 1995 Cr. APP.R 455. 32 1969 INDLAW SC 500 33 ibid

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contrary to arouse horror and revulsion in the audience against the social evil being

depicted. This is referred to in UK as the aversion defence and best example of the

aversion test in India could be seen in Bandit Queen case in which the film was

challenged on the ground of nudity. The court held that the scheme was focused to

highlight the trauma and emotional turmoil of the victim and to evoke sympathy for her

and disgust for the rapist.34

THE INDECENT REPRESENTATION OF WOMEN (PROHIBITION)

ACT, 1986

This is an Act to protect the dignity of women. Section 3 of the Act prohibits

advertisements containing indecent representation of woman.35 Similarly sec. 4 of the Act

prohibits publication or sending by post of books, pamphlets etc. containing indecent

representation of women. If someone violates the provisions then for the first offence he

can be sentenced up to 2 years and a fine up to two thousand rupees may be imposed

upon him. For the subsequent offence the imprisonment may be not less than 6 months

which may be extended up to five years and a fine may be imposed which shall not be

less than ten thousand rupees but which pay be extended up to one lakh rupees. Thus, if

authorities find that some one is producing, selling ore circulating indecent material

under the Act then they can take recourse of sec. 4 of the Act and impose restriction on

publication, circulation of such material.

It is submitted that the Act does not contain unreasonable provisions because

exception can been made under proviso to sec. 4 of the Act in favour of book, pamphlet,

paper, slide, film, writing, drawing, painting, photograph, representation or figure which

is in the interest of science, literature, public good etc.

34 Om Pal Singh Hoon vs Bobby Art International 1996 INDLAW SC 2587 35 Sec. 3- “no person shall publish or cause to be published or arrange or take a part in the

publication or exhibition or any advertisement which contains indecent representation of women in any form”.

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THE PRESS COUNCIL OF INDIA ACT, 1978

Under this Act, the Press Council was reconstituted (after 1976) to maintain and

improve the standard of newspaper and news agencies in India. Section 13 of the Press

council Act, 1978 specifies the objects and functions of the council.

Section 13 (2)(c) states to ensure on the part of newspapers, news agencies and

journalist, the maintenance of high standards of public taste and foster a due sense of

both the rights and responsibilities of citizens.

Sec 14(1) empowers the council to warn, admonish or censure the newspaper,

the news agency or the journalist if a complaint is found true against him.

On 1.6.2006 under clause 18(d), an advertisement policy was issued by the

directorate of Audio Visual publicity under the Central Government Advertisement

Policy stating that the newspapers will be suspended from empanelment by DG, DAVP

with immediate effect if it indulged in unethical practices or anti-national activities as

found by the press council of India.

Although on one hand, the constitution confers the fundamental right of

freedom of the press, Article 105(2) provides certain restrictions on the publication of

the proceedings in Parliament. In famous searchlight case,36 the Supreme Court held

that, the publication by a newspaper, of certain parts of the speech of members in the

House, which were ordered to be expunged by the speaker constituted a breach of

privilege.

THE PRESS (OBJECTIONABLE MATTERS) ACT, 1951

This enactment provides “against the printing and publication of incitement to

crime and other objectionable matters.

36 1958 INDLAW SC 135

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ADVERTISING STANDARDS COUNCIL OF INDIA

Advertising communication is a mix of arts and facts subservient to ethical

principles. In order to enforce an ethical regulating code, the advertising standards

council of India was set up. Its function is:

• to ensure the truthfulness and honesty of representation and claims made

by advertisements and to safeguard against misleading advertising.

• to ensure that advertisement are not offensive to generally accepted

standards of public decency.

• If the council finds an advertisement misleading it can impose restriction

on publication of such advertisements

THE CINEMATOGRAPH ACT, 1952

The Cinematograph Act, 1952 has been passed to make provisions for

certification of cinematograph films for exhibition and for regulating exhibitions by

means of cinematographs. Under the Act there is provision for constitution of a Board

called the Board of Film certification by the central Government.37 The function of the

Board will be to sanction the films for public exhibition. The board may after examining

the film with the help of advisory panels at regional centres either sanction the film for

unrestricted public exhibition,38 or may sanction the film for public exhibition restricted

to adults only,39 or it may sanction the film for public exhibition restricted to members of

any profession or any class of persons keeping into account the nature, content and

theme of the film.40 The Board can also direct the applicant to carry out such excisions or

modification in the film as it thinks necessary before sanctioning the film for public

exhibition.41 The Board can even refuse to sanction the film for public exhibition.42

When we analyze the above provisions then we find that Board of film

certification is having very wide powers with regard to sanctioning of a film for public

37 S.3 of the Cinematograph Act, 1954. 38 S.4(1) of the Act. 39 Sec 4(11) of the Act. 40 S.4 (iia) of the Act. 41 S.4 (iii) of the Act. 42 S.4 (iv) of the Act.

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exhibition. Infact if it refuses to sanction a film for exhibition then such film can’t see the

light of the day. It is a serious blow to the freedom of speech and expression but there

are certain safeguards also in the Act to minimize the misuse of the Act. While examining

the film the CBFC can refuse to certify a film on the grounds enumerated under Sec.

5B(1) of the Act.43 Further under S. 5B(2) of the Act, the central government is

empowered to issue such directions as it think fit to guide the authority competent to

grant certificate. Consequently the Central Government issued following guiding

principles:44

(a) The objectives of film certification will be to ensure that :

• the medium of film remains responsible and sensitive to the values and

standards of society;

• artistic expression and creative freedoms are not unduly curbed.

(b) In pursuance of the above objectives, the Board of Film Certification

shall ensure that:

• Scenes -

(c) showing involvement of children in violence as victims or as

perpetrators or as forced witness to violence, or showing children as

being subjected to any form of child abuse;

• human sensibilities are not offended by vulgarity, obscenity or

depravity;

• scenes degrading or denigrating women in any manner are not

presented.

• Visuals or words contemptuous of social, religious or other

groups are not presented.

• Visuals or words involving defamation of an individual or a

body of individual or contempt of court are not presented.

(d) The Board of Film Certification shall ensure that the film :

43 S.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 offence.

44 S.O. 836(E) of Government of India, Ministry of Information and broadcasting; on 6 December, 1991.

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• is judged in the entirety from the point of view of its overall

impact; and

• is examined in the light of the period depicted in the film and

the contemporary standards of the country and the people to

which the film relates, provided that the film does not

deprave the morality of the audience.

When we carefully examine these provision and guidelines then we find that

these have been carefully drafted to minimize the abuse of the powers conferred to

CBFC. But still the Act is not free from criticism. For example section 7-F of the Act

provides for bar of legal proceedings against the central government, tribunal, the Board,

advisory panel or any officer or member of the above mentioned bodies in respect of

anything which is done in good faith or intended to be done in good faith under the Act.

Taking benefit of this provision the authorities may misuse and harass the film

procedures.

Similarly S. 13 of the Act empowers central Government of local authority to

suspend the exhibition of a certified film without giving opportunity of being heard to

the aggrieved party and from that date the film shall be deemed to be uncertified film. It

is gross violation of principles of natural justice.

When a films exhibition is challenged under the Cinematograph Act, 1954 then

the courts have to keep in mind following considerations:

Judging the work as whole

Clause 3(i) of the guidelines issued under sec 5-B of the Cinematograph Act

provides that: “the Board of film certification shall ensure that the film is judge in its

entirety from the point of view of the overall impact.”

Contemporary / National Standards

While issuing certificate to the film the Board shall ensure that the film is

examined in the light of the period depicted in the film and the contemporary standards

of the country and the people to which the film relates, provided the film does not

deprave the morality of the audience.

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Test of ordinary Man

The test for judging a work should be that of an ordinary man of common sense

and prudence and not an “out of the ordinary or hypersensitive man”.45 As, Hidayatullah,

C.J. remarked in K.A. Abbas vs U.O.I.46

“if the depraved begins to see in these things more than what an average person

would, in much the same way, as it is wrongly said, a Frenchman sees a woman's leg in

everything, it cannot be helped”.47

THE INFORMATION TECHNOLOGY ACT, 2000

The Information Technology Act, 2000, has been enacted to prevent publication,

transmission of obscene material in the electronic form through internet. Section 67 of

the I. T. Act, 2000 provides punishment up to 5 years and a fine which may extend up to

Rs. One Lakh for publishing or transmitting material, which is lascivious or appeals to

the prurient interest. For subsequent conviction, the imprisonment may be extended up

to ten years and the fine may also be imposed up to Rs. two lakhs.

Similarly, Section 69 empowers the controller to intercept any information

transmitted through any computer resource, if it is against the sovereignty and integrity

of India, public order or incite for the commission of a cognizable offence.

Section 75 of the act provides for prosecution of offenders who have committed

the offence outside India, if such act involves a computer or computer network located

in India. It shall be applicable to any person, irrespective of his nationality. Thus, the IT

Act up to a great extent brought within its purview the offenders who are from outside

India.

CENSORSHIP ON FREEDOM OF SPEECH AND

EXPRESSION IN FOREIGN COUNTRIES

45 S. Rangarajan vs P. Jagivan Ram 1989 INDLAW SC 549 46 1970 INDLAW SC 165 47 Ibid, para 49, at p. 802.

18

CENSORSHIP ON FILMS IN U.K.

Cinema censorship is still common in U.K. and has received and approved of by

the Williams committee on obscenity and film censorship. In U.K. there is a system of

censorship under which legally decisions are taken under statue, namely the Cinemas Act,

1985., by local authorities, but in practice by the informally constituted BBFC. The

delegation of effective censorship and classification power to the BBFC has been

recognised by the statute: it requires local authorities to impose restrictions on admission

of children to films which have been designed by the authority itself or by another body

(specified in the licence of the cinema premises) as unsuitable for them [Cinemas Act,

1985, s.i (3)]. But the local authority must retain the right to take the final decision48.

Sometimes an authority allows the showing of a film, despite the refusal by the BBFC to

issue a certificate, or it bans its exhibition in the area despite the grant of a certificate by

the Board.

The BBFC takes decisions on the basis of published classification guidelines,

prepared after public consultation. (The guidelines were revised in August 2002,

principally to make the “12 A” rating for films advisory, so that children under twelve

may view such films, provided they are accompanied by an adult). It will not issue a

certificate if it considers the film is likely to infringe the criminal law.

Most cinemas distributors appreciated film censorship because of advantages

like certainly speed of decision and cheapness.

CENSORSHIP ON FILMS IN GERMANY

In Germany censorship is outlawed by article 5 of the Grundgesetz (basic law).

Germany has a system of self- regulation operated by bodies’ representative of the film

industry. In practice producers submit films for classification, although it is lawful to

distribute them without a certificate. This system as a whole does not contravene the

grundgesetz, but the classification by the classification authority of a film, which has been

48 Mills vs Lec,1925 I Kb 213,dc

19

submitted to it before release, on the ground that its distribution would infringe the penal

law, did constitute unlawful censorship49.

CENSORSHIP ON FILMS IN USA

In USA cinema has enjoyed first amendment protection. Court refused to

approve the ban on a film on the ground that it was “sacrilegious”, a term which was so

vague as to enable the state to prescribe a documentary or feature which is clearly

covered by the First Amendment50. The only form of control in the United States is a

voluntary classification system operated by the film industry itself. This is used to grade

films, largely to assist parents to decide their suitability for children. The effect is that

hard-core pornographic movies are easily accessible to adults.

As far as censorship on other forms of expression and speech is concerned, these

are protected by the first amendment to the constitution of USA, which provides that

congress shall make no law which restrict the freedom of speech or the basis of the

press.

At the heart of first amendment is the notion that an individual should be free to

believe as he will, and that in a free society one’s belief should be shaped by his mind and

conscience rather than forced by the state51. But freedom of speech and press does not

protect obscenity; government may prohibit or restrict distribution of obscene

materials52. Later on U.S. Courts evolved clear and present danger doctrine as a guide in

determining the constitutionality of restriction on the right of free speech and free press.

Such restrictions may be imposed when and only when, necessary to prevent grave and

immediate danger to interests which the government may lawfully protect53. Under the

clear and present danger rule the word “clear” is not limited to a threat indubitably

etched in every detail, but includes that which is not speculative but real, not imagined,

but actual54.

49 (87 BVERF GE 209, 232-33 11993 50Burstyn vs Wilson, 343 US 495 ,1952 51Abood v Detriot Bd.of Ed., Mich.,97 S.ct. 1782,431 U.S.209,52,L.Ed.2d 261, rehearing denied

97 S.ct.2989,433 U.S.915,53 L.Ed.2d 1102 52 Robinson vs Rarsons, C.A.Ala., 560 F. 2d 720 53 Schenk vs United States, Pa., 39 S.Ct.247,249 U.S. 47, 63 L.Ed.470 54D.C.- Communist Party of U.S. vs Subversive Activities Control Bd., C.A., 223F.2d 531

20

CONCLUSION

Freedom of speech and expression is the mother of all liberties and freedom of

press can be regarded as the very business of a democratic form of government. Richard

M. Schmidt has rightly said “our freedom depends in large part, on the continuance of a

free press, which is the freedom of speech and expression of individual or press”. But it

is not unfettered. Such freedoms are subjects to reasonable restrictions and one such

restriction is censorship. Article 19 (2) of the constitution of India provides basis for

imposition of restrictions in the form of censorship. Consequently so many laws have

been enacted which provides for censorship viz. the press council of India Act,1978.,the

Press(objectionable matters)Act, 1951., the Indian Cinematographic Act, 1952 etc. These

laws are of such a nature that if they will not be used with caution, may led to total

deprivation of freedom of speech and expression. Thus, it becomes incumbent upon the

judiciary to strictly scrutinise restrictions in the form of censorship and allow such

restrictions only in a situation where there is no other option left with the Courts. Often

the grounds on which censorship is imposed are of vague in nature. So, Courts should

give narrow interpretation to those terms. By doing so it may be able to protect such a

noble and cherished value like freedom of speech and expression.