The issues of censorship and criminal prosecution, be it on grounds of public order, decency or morality, have already been debated well. These issues have usually arisen when the state has moved proactively to either ban or censor speech. But the debate in Punjab has progressed in the opposite direction.
The arrest of singer and lyricist Shree Brar for glorifying lawlessness is the latest chapter in the tussle between state and artists. Brar was booked for defamation and criminal conspiracy, among other charges, for his song ‘Jaan’ which was allegedly “detrimental to peace and order.”
The singer in the video of the song is depicted as a character close to criminals, of whom even the government is scared. The song and video says the singer keeps “two weapons” with himself and that he is to Bathinda city what Ansari, the gangster-turned-politician, has been to Uttar Pradesh. There is also a scene where the singer discharges his weapons inside a police station in front of police officers to help those behind the bars escape.
If that was not enough, the last week of February saw the release of another song penned by Shree Brar, titled Dawood, where the protagonist boasts of influence similar to Dawood Ibrahim.
This has reignited the debate over the glorification of a culture of violence, drugs, alcohol and misogyny in contemporary Punjabi songs.
To cite an example, a popular Punjabi song has lyrics which translate to:
“She’s standing in the corner, I will grab her arm
I will dance with you, keep my hand on your waist
I will run into you on purpose
I will have a glass of scotch on my head.”
In this case, and in the case of many popular songs, it is fortunate that people never really begin to dissect the lyrics and play them for the tunes. Ignorance truly seems blissful in this regard.
In such a situation, where state intervention, or for that matter, any intervention at all takes place, three stages are involved.
First is the triggering point – the perception that “something” is creating problems causing authority to take notice.
Second is the analysis point – the factual realities as to whether the problem that has arisen is actually attributable to that “something”.
If the second question is answered in the affirmative, then third is state intervention and choice of corrective mechanism to counter that “something”.
It is then that issues arise as to whether the authority enacting corrective measures can legally do so and if it can, then should it do so.
Perception
Songs glorifying guns, alcohol and drugs complete the “bad boy” perception that these nature of songs seek to communicate. They not only objectify women but also stir the masses negatively. That the latter point is no exaggeration is seen in the order of the Punjab and Haryana high court in the case of Reet Mohinder.
Taking note of the rising culture of gangsters in the states of Punjab and Haryana, the court pointed to violent songs and deplored the public display of semi-nude posters of films certified only for adults.
Also read: YouTube Removes 2 Songs on Farmers’ Protest, Producer Says HQ Cited ‘Govt Intervention’
Cinema and music do captivate masses, invoking the state’s ire at times. The Supreme Court in the Rangarajan case, citing a study, sought to explain it:
“Movie motivates thought and action and assures a high degree of attention and retention. It makes its impact simultaneously arousing the visual and aural senses. The focusing of an intense light on a screen with the dramatizing of facts and opinion makes the ideas more effective…”
The study, as cited by the Supreme Court, in effect concluded that a continued exposure to films of a similar character could produce a change in the attitudes of viewers. Hence films stand on a different pedestal than other modes of communication and censorship by prior restraint is necessary, the study says.
While exhaustive study is essential to prove to what extent life can imitate art, the extent of state intervention into the matter of art is a tricky one.
In a country such as ours, where the courts can shut liquor stores on the highway, or by a stroke of a pen direct each citizen to stand for the National Anthem in theatres, while the executive sits at peace with it, matters are further complicated.
Whether state intervention is valid or not depends upon the corrective mechanism adapted. Methods such as state-sponsored sensitisation efforts or warning signals on harmful substances like cigarettes do not impinge on any fundamental rights per se.
With censoring songs, the matter is different and the Punjab assembly is already facing a legislative impediment in this regard.
A proposal to censor songs reportedly hit a wall since a Central law, the Cinematograph Act 1952, is already in place. A Committee constituted had also recommended that songs and their lyrics be included in the definition of “films” under the Cinematograph Act.
There does not, however, seem to be any specific embargo on the state of Punjab, should it wish to enact a specific law on certification and censoring of songs.
The power to enact a law on films is given to the Central government under Entry 60 of List I (the Union List), which states: “sanctioning of cinematograph films for exhibition”.
Under Entry 33 of List II (the State List), it is provided: “Theatres and dramatic performances; cinemas subject to the provisions of entry 60 of List I; sports, entertainments and amusements.”
A cursory glance at both these entries would show two things:
(a) The Union enjoys power to make laws on sanctioning of films,
(b) The state can make laws for cinema, subject to the Union government’s powers under List I. In fact, Punjab has its own Act under this entry that deals with cinema premises, licences, and even suspension of exhibition of films in certain circumstances. It is also equally important to note that the term “entertainment” is specifically stated under the List II and may encompass songs and music.
Should the state intervene?
Now it is clear that banning, censoring and certifying songs may be within the domain of the states. But will the exercise of such power stand the test of constitutionality and the democratic principles of free speech.
An equally important facet of free speech is its utilitarian component, which can be best understood from what John Stuart Mill stated in his essay On Liberty:
“…[I]f the opinion is right, they [people] are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”
In Rangarajan, the Supreme Court quoted Alexander Meiklejohn to opine that conflicting views should be expressed, not on account of them being valid but because they are relevant.
But should a democratic state only allow freedom of speech or expression if it has some intrinsic worth? If the content is deemed obnoxious, will the state be correct to intervene?
Aside from Mill’s utilitarian justification of free speech, there is the idea of ‘individual autonomy’. Discussing Scanlon’s theory of free speech, constitutional scholar Gautam Bhatia postulates that no censorship can be acceptable where the allegation is merely that the speech or expression of the person may cause people to be swayed. If the recipient of such speech and expression allows herself to be influenced by any message, then the state must respect the autonomy of such a recipient, even if the message is patently wrong.
The question that this brings is, what if such behaviour offends others?
This opens up the space for a qualification to be added, which may be something to this effect: “Speak or express in whatever way you may please, provided you are not harming others”. And this is what Mill defines as the limit on liberty:
“[N]o one pretends that actions should be as free as opinions…[T]he liberty of the individual must be thus far limited; he must not make himself a nuisance to other people. But if he refrains from molesting others in what concerns them, and merely acts…in things which concern himself…he should be allowed, without molestation, to carry his opinions into practice at his own cost.”
Clearly, harm is not caused by personal reservations against what is shown on screen but in putting others in line of physical danger – for instance, instigating a mob to be violent – after consuming what has appeared on screen.
The idea of ‘individual autonomy’ seems to shift the focus from the person delivering an objectionable material and puts it on the recipient. The analogy – harsh as it may sound – would be this: would we restrict our movement because there is a barking dog that will be tempted to unleash itself on us whenever we walk on the road or would we restrain the barking dog?
If the state feels that the people will not be able to think rationally or may resort to violence, then it is not the person delivering the content that needs to be restrained. It is the recipient of the content who needs to be censored if they create trouble, i.e. engage in activities that may violate public order or commit criminal acts.
This approach, however, renders the state a reactive entity. But then, historically, any attempt to preemptively prevent any crime has only allowed for an intrusive state that has grown authoritarian.
Also read: Munawar Faruqui Act Hadn’t Even Begun but HC Denies Bail, Says Comic Outraged Religious Feelings
In the case of Shree Brar’s arrest, the matter of his vocal support to the ongoing farmers’ agitation and the fact that the Punjab government which has arrested him is sympathetic to the protest, has complicated things. Meanwhile, Brar’s arrest has only accumulated viewers. The ‘Jaan’ track managed 14 million views in only a month with commenters frequently referring to his arrest.
So while the state of Punjab can certainly intervene, the idea of censoring or banning definitely impinges upon individual autonomy on account of the fact that the state is making decisions for its people on what content they can be trusted with.
The best approach is to bring about a counter-narrative with the state aggressively approaching people, sensitising them and engaging with them on the harm these lyrics are capable of causing.
The idea of banning or censoring any content, especially in the digital age, will do nothing but allow a parallel dissemination – one which the state cannot even prevent – to flourish. The Prohibition era in the US is testament to the fact that banning is never a wise idea.
Akaant Kumar Mittal is an advocate at the Punjab and Haryana high court, Chandigarh, and National Company Law Tribunal, Chandigarh. He is a graduate of the National Law University, Delhi. and can be reached at akaant.m11-alumni@nludelhi.ac.in. He is the author of the commentary Insolvency and Bankruptcy Code – Law and Practice, with a foreword by Justice Suryakant, and published by EBC Publishers. He is also visiting faculty at NUJS, Kolkata.
The author wishes to express his gratitude towards Kshitij Bansal, assistant professor at Jindal Global Law School and assistant director of Outbound Mobility, office of International Affairs and Global Initiatives.