Udta Punjab and the Need to Revisit Doctrine of Prior Restraints

The CBFC’s decisions amount to nothing more than the denial of fundamental freedoms and mockery of public institutions.

Movies and theatrical productions have always played an important role in Indian politics. Perhaps the biggest role they played was during the emergency when destroying the prints of Kissa Kursi Ka landed Sanjay Gandhi in jail. Rewinding further, we remember that Ningalenne Communistakki (‘You Made Me a Communist’), a play by the Kerala People’s Arts Club, catapulted the communist movement in Kerala to the state’s first democratically-elected communist government in 1956. Since then, we have witnessed numerous instances in which governments, both central and state, have used the Cinematograph Act, 1952, a colonial imprint, to control the right of speech and expression through movies and theatrical performances (see Tamil Nadu Dramatic Performances Act, 1954), using pre-censorship techniques. In legal studies, pre-censorship is known as ‘prior restraints’.

Udta Punjab, being its latest victim, necessitates the need to revisit the doctrine and its applicability in the 21st century.

Thomas Emerson, the late professor of law at Yale University, defined doctrine of prior restraint as “official restrictions imposed upon speech or other forms of expression in advance of publication”. This essentially means that the state, by imposing prior restraints, prevents the act of expression from taking place at all.

History of censorship

The struggle of the press was primarily directed against the power of the licensor as there existed an elaborate system of licensing in different parts of the world.

Until 1694, English authors had to deal with a system of licensing wherein the publisher had to secure a license for ‘lawful’ publication. Justice Story, in his three-volume scholarly work Commentaries on the Constitution (1833), provides a concise discussion on the history of censorship. He says that the art of printing, immediately after its introduction, was seen as a prerogative of the state and subject to the coercion of the crown. In England, it was regulated by the king’s proclamations, prohibitions, charters of privilege, licenses, decrees of the Court of Star-Chamber, which limited the number of printers and presses that each should employ and also prohibited new publications unless previously approved by proper licensers. After the restoration of Charles II a statute was passed on this subject which expired in 1679. This was later revived and continued for a few years after the revolution of 1688. However, the statute was met with strong criticism in parliament and was not revived after 1694. The position of law in common law countries was summarised by William Blackstone in the following manner:

“The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity.”

In the US, growing popular pressure demanded more articulation on the guarantees of individual rights from governmental interference, which resulted in the adoption of the Bill of Rights in 1791 (the first ten amendments are collectively known as the ‘Bill of Rights’ and the first amendment, inter alia, deals with freedom of speech).

Near v. Minnesota, 283 US 697

In Near v. Minnesota, the US supreme court categorically held that prior restraints are a clear violation of the first amendment. However, it was held that three categories of speech may be restrained:

1. Obscene speech
2. Incitement to violence
3. National security

Here, the burden is invariably on the government to prove that the speech in question falls under any or all of the above three categories. Successive decisions of the Supreme Court have consistently approved the exceptions provided in the Minnesota case. Thus, any mode of prior restraints of speech or expression bears a heavy presumption against its constitutional validity.

Central Board of Film Certification (CBFC)

The statement of objects and reasons of the Cinematograph Act, 1952, specifies that it deals with two matters: examination and certification of films as suitable for public exhibition and regulation of cinemas including their licensing. Section 5B(1) of the Act reproduces Article 19(2) which deals with restrictions on freedom of speech and expression. In other words, according to section 5B(1) of the Act, a film shall not be certified for public exhibition if it violates any of the conditions provided therein.

The constitutional validity of CBFC was challenged before a five judge-bench of the Supreme Court in K.A. Abbas v. Union of India AIR 1971 SC 481, wherein it was held that ‘the censorship of films including prior restraint is justified under our constitution’. It was further observed by the Supreme Court that if the theme offends the rules and if either with or without excision of the offending parts the film remains offensive, the certificate can be refused (whether or not the CBFC has the power under the Act to order or demand excisions is another, moot question). Further, it was also held by the Supreme Court that for the purposes of censorship, the treatment of motion pictures on a different footing from other forms of art and expression is valid.

However, according to me, this is an unacceptable proposition that defies all common sense and wisdom. On an other occasion, the Supreme Court held that this classification of movies as different is valid because movies cater for mass audiences who are generally not selective about what they watch. If we extend this proposition to its logical (or rather, illogical) end, the conclusion we must come to is that people who read newspapers are on a higher intellectual level than movie-goers and mature enough to make informed decisions about what they read. It is also pertinent to note that the observations in Abbas is against the dicta of the Supreme Court in Brij Bhushan v. State of Delhi AIR 1950 SC 129, wherein it was held that the imposition of pre-censorship on a journal is a restriction on the liberty of the press guaranteed under Article 19(1)(a) of the Constitution. Undoubtedly, the Supreme Court has wrongly interpreted the doctrine of prior restraints for movies and, sadly, it will require a seven judge-bench in the future to correct this problem.

Udta Punjab

Udta Punjab has become the latest casualty of the Supreme Court’s illogical reasoning and the CBFC’s partisan approach. If prior restraints violate the rights of the press guaranteed in Article 19(1)(a), the doctrine should apply equally to movies as well. In Prakash Jha v. Union of India (2011) 8 SCC 372, the Supreme Court held that once a movie was certified by the CBFC, a state could not prohibit its exhibition citing law and order issues. This is a welcome move but, as far as moviemakers are concerned, an illogical interpretation of section 5B(1) by the CBFC continues to deny their right of free speech and expression.

For instance, in the case of Udta Punjab, the CBFC has identified “objectionable” scenes, quite a few of them in fact, that it wants the filmmakers to remove. Reports suggest that the CBFC has asked the filmmakers to remove, among other things, references to real places, which creates obvious problems for the title of the movie. This is the latest in a series of events in which the members of the CBFC have sought to expand the definition of ‘obscene speech’ to include any kind of expression that fits its agenda.

The story of drug abuse in Punjab is the worst-kept secret of the poll-bound state and one with serious political implications for the incumbents. When this is read together with the recent decisions of the CBFC, which lack a consistent application of law or logic, the filmmakers and the public are right to suspect political motives in the present decision. What all this amounts to is a mockery of public institutions by the office bearers, which has lead to a serious erosion of public faith in them, and the denial of fundamental freedoms – something to which all the ruling governments and political parties have contributed. It is high time that this theater of the absurd played out its last act. More Udta Punjabs will happen in the future unless the parliament takes a bold step and addresses the issue of prior restraints in movies.

Rahul Unnikrishnan is an advocate in the Madras high court.

(The author acknowledges the assistance of Roshin Unnikrishnan, MBA graduate, Yale University.)