Censoring films to ‘protect’ the audience

IN Censorship | 06/07/2010

The proposed changes to the Cinematograph Act, 1952 reinforces existing government policy where the medium of film continues to be treated through a prism of suspicion, rather than as an enabling medium for the promotion of speech, belying the claims of the Union Ministry for Information and Broadcasting that the proposed changes will bring the legislation in tune with the times.

Contemporary studies in the area of media, visual and spectatorship studies have shown that discredited earlier ‘Direct Impact’ theories and have shown that there is far more complex interaction between the spectator and the image than was earlier believed. These theories contest the claim that there is a direct correlation between audiences and their behaviour, the logic that is at the root of the manner in which legislations like this draft Bill are framed.
A cursory reading of the proposals indicates that there is next to nothing in the draft law to substantiate this claim. In fact, what the proposed law does is to reinforce outdated perceptions of the threats posed by the medium of film, to continue to use the constitutional exceptions to free speech as the basis of framing law.

In India, the right to free speech has been circumscribed by limitations based on public morality, public order, national security, and forms of expression that would lead to contempt of court, defamation or incitement to an offence, or affect friendly relations with other states.

Cinema is one of two forms of media that faces pre censorship in India (the other being theatre). The Supreme Court in the 1970 case, K.A Abbas, case turned down a challenge to the system of pre-censorship of cinema. The court stated that pre- censorship was necessary as the medium of film had to be treated differently from other forms of art and expression. "The art of the cameraman with trick photography, vista vision and three dimensional representation thrown in has made the cinema picture more true to life than event the theatre or indeed any other from of representative art."

The appellate Indian courts have a positive record on free speech rights and recent judicial decisions like the Delhi High Court’s M.F. Husain and Naz Foundation cases have shown that judges are beginning to recognize that Indian society has changed remarkable over the last six decades. However, the Indian bureaucracy and policy makers have not kept pace with this.
With technology becoming ubiquitous, our avenues of experience have also increased concomitantly, and as such, putting such restrictions on one medium, that is films, is unfair to filmmakers, artistes and audiences as professionals and as citizens. The paternalistic logic that ‘vulnerable audiences’ need to be protected from images of violence, nudity, obscenity etc is completely irrational when audiences are encountering such images on a routine basis on television, video, the Internet, and a host of other new technologies that are commonly used in India today. 
The proposed Bill makes no distinction between ‘public’ and ‘private’ exhibitions and does not attempt to define what constitutes a ‘public’ or ‘private’ exhibition. Instead, the proposed Bill has put in place such a broad definition of ‘exhibition’, that it will impossible to enforce given the ubiquitous nature of the visual medium today and the manner in which such technologies have become personalized.

Such a broad definition of exhibition includes educational institutions, independent cultural centers, exhibitions meant for scientific purposes etc. Further, this definition of ‘exhibition’ goes against the Supreme Court’s interpretation of the term, which is much more restrictive. The Ministry should distinguish between ‘public’ and ‘private’ exhibitions and define these terms in consultation with stakeholders, especially filmmakers.
 
The proposed Bill does not differentiate at all between fictional and non-fictional films such as documentaries. Documentaries highlight issues, some of which will be necessarily controversial, but which cannot be ignored. A debate on such issues is necessary, and giving the CBFC the right to regulate such non-fictional films means a direct restriction on political debate.

Another major concern is regarding the criminalization of the act of unauthorized copying of a negative or of a film. It must be pointed out that the act of unauthorized copying has been criminalized by the Copyright Act, and is subject to the exceptions provided therein as well as the principles governing copyright law. Incorporation of unauthorized copying as an offence under the proposed Cinematograph Act would hopelessly confuse the law regarding copyright in India by introducing a duplicate penalty for violation of copyright.

Unless the Ministry makes the process of drafting this Bill consultative and brings in voices of a range of civil society actors including film makes, we will continue to be governed by a 1950s legislation in 2010.

(Siddharth Narrain is with the Alternative Law Forum, Bangalore)