2.

3 CONSTITUTIONAL RESTRICTIONS:
The question that naturally would surface is how far is this censorship compatible
with the constitutional provisions of a democratic nation? In many ways then
censorship not merely silences speech but it also produces authorized forms of
truth. This pertains not only to cinema but figures in the larger issues of all human
creativity. It is argued that struggles over free speech and the dynamics of
governmentality have their distinct regional and national histories. However, even
from its inception, cinema has a global history, and thus to follow its
evolution vis-à-vis censorship is to trace a graph of disciplinary technology that
proliferates normalized understandings of subjectivity, sexuality, and citizenship
in the lines of Michel Foucault.103
The Constitution attempts to strike a balance between individual liberty and social
control. Justice Mukherjee rightly observed:
102 Constituent assembly Debates,Vol.VII 40-41.
103 “Exploring cinema, censorship and its impact”, The Hindu (3 December 2013), available online
online at http://www.thehindu.com/books/books-reviews/exploring-cinema-censorship-and-its
impact/ article5415198.ece (last accessed 28 December 2016).29
“There cannot be any such thing as absolute or un-controlled liberty
wholly freed from restraint, for that would lead to anarchy and disorder. The
possession and enjoyment of all rights are subject to such reasonable conditions as
may be deemed by the governing authority of the country essential to the safety,
health, peace, general order and morals of the community. The question therefore,
arises in each case of adjusting the conflicting interests of the individual and of
the society.”
A limitation on the exercise of the right shall satisfy the following requirements
for its validity: 104
i)
The restriction must be one imposed by a valid law. A restriction
imposed by executive action will be valid.
ii)
The restriction must be reasonable, and
iii)
The restriction must be proximately related to purposes mentioned in
the respective sub-clauses of Article 19.
The presence of the term reasonable in sub-clause (2) of Article 19 empowers the
judiciary to sit in judgment over legislative determination. The Supreme Court
time and again pointed out that reasonableness will depend upon facts and
circumstances of each case, the evil sought to be remedied and the condition
present in society at a given time.
Justice Mahajan has summarized the scope of the term in the following words:105
“The phrase “reasonable restriction” connotes that the limitation imposed
on a person in enjoyment of the right should not be arbitrary or of an excessive
nature, beyond what is required in the interests of the public. The word
„reasonable‟ implies intelligent care and deliberation that is the choice of a course
104 DD Basu, Shorter Constitution of India (1981)77. See also M.P Jain, Indian Constitutional Law
(1978) 444.
105 Chintaman Rao v. State of M.P, (1951) AIR SC118.30
which reason dictates. Legislation which arbitrarily or excessively invades the
right cannot be said to contain the quality of reasonableness and unless it strikes a
proper balance between the freedom guaranteed and the social control, it must be
held to be wanting in that quality.”
The Supreme Court, in the case of Life Insurance Corporation of India v. Prof.
Manubhai D. Shah106, stated that “the restriction had to be interpreted strictly and
narrowly. Such restrictions are bound to be viewed as anathema, inasmuch as they
are in the nature of curbs or limitations on the exercise of the right and are,
therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on
the authorities who seek to impose them.”
As noted above, film censorship was in vogue in India from 1918 onwards.
Before the commencement of the Constitution of India, the question of
constitutional validity of the law did not arise at all. The law continued even after
the commencement of the Constitution until it was repealed and re-enacted by the
Cinematograph Act 1952. 107 The Act provides for the establishment of a „Central
Board of Film Certification‟, the regulatory body for films in India to issue the
certificate to the makers of the film for public exhibition. As per the provision of
the law, the Board after examining the film or having it examined could (a)
sanction the film for unrestricted public exhibition; (b) sanction the film for public
exhibition restricted to adults; (c) direct such excisions and modifications in the
film before sanctioning the film to any unrestricted public exhibition or for public
exhibition restricted to adults; and (d) refuse to sanction the film for public
exhibition.
106 (1992) 3 SCC 637.
107 So far censorship of films in India is concerned, the power of legislation is vested with the
Parliament under Entry 60 of the Union List (or List I) of the Schedule VII of the Constitution.
The States are also empowered to make laws on cinemas under Entry 33 of the Sate List (or List
II) but subject to the provision of the central legislation. The prime legislation in this respect is the
Cinematograph Act, 1952, No. 37 of 1952, and the Cinematograph (Certification) Rules, 1983,
Gen. S.R. 381(E).31
2.4 PRINCIPLES FOR CERTIFICATION OF FILMS:
In a free society, it is necessary to restrict the freedom of one individual so that it
may not collide with the freedom of others. If liberty is a social conception, there
can be no liberty without social control. Limitations on the exercise of freedom
are an accepted fact. The only controversy is the extent to which such restrictions
are to be imposed.
On the one hand, the freedom is must for human progress. On the other hand, it is
equally important to restrict the freedom not only in the interest of society. Ideally
what is required is to strike a balance between these two competing claims. The
extent of limitations necessarily depends upon the changing conditions of society.
Indian Constitution, recognizing the need for limiting the exercise of fundamental
right in public interest, expressly authorizes the State to impose reasonable
restrictions on the exercise of the said right. The grounds on which these
restrictions can be imposed are enumerated in clause 2 of Article 19 of the
Constitution. It is significant to note that this clause does not impose any
obligation on the State to impose restriction. The provision is only permissive.
The concept of „reasonableness‟ imports judicial review.108
Section 5 B (1) of the Act sets out the principles for guidance in certifying films.
The Section is more or less a replica of Clause 2 of Article 19. The Supreme
Court while upholding Section 5 B (1) of the Act opined that the absence of the
term „reasonable‟ in the section would not make any difference at all and the court
could still look into the reasonableness of the action taken by the Board. The
scope and ambit of the grounds mentioned in Article 19 (2) of the Constitution
has been judicially expounded. Since Section 5 B (1) uses the very same terms,
the interpretation given to these terms in other cases can be used for expounding
the scope of the section.
108 Shashi
P.Mishra,Fundamental rights and the Supreme Court:Reasonableness of Restrictions
(1984) 43-46.32
2.4.1 Sovereignty and integrity of India:
These words were added to Article 19 (2) of the Constitution by the Constitution
(Sixteenth) Amendment Act 1963 to provide for a legal frame work to arm the
Government with sufficient powers to meet effectively with the demand for
dismemberment of the country and cession. The amendment was incorporated at a
time when the disintegrating tendencies in the country have assumed alarming
propositions. Cinema should not encourage these tendencies. Perceiving the
possibility of such a threat, Parliament amended Section 5 B (1) of the Act in
1981 by adding the words: “sovereignty and integrity of India” in order to refuse
certification to a film.
2.4.2 Security of State and Public Order:
The scope of the term „public order‟ is wider than „security of state‟ although
more often than not the two overlap.109 The original Clauses (2) of Article 19 did
not contain the word „public order‟ for which restrictions could be imposed.
Measures taken by the Government for maintaining public order or public safety
were declared unconstitutional by the Supreme Court holding that the phrase
originally contained in Clauses (2) of Article 19 of the Constitution vis., „Security
of State‟ would apply only aggravated forms of breaches of public order such as
those endangering the foundations of State or threatening the over throw of the
Government by force and, therefore, any restriction in the interest of public order
not amounting to security of state would not be valid. In order to overcome the
difficulties caused by these decisions the Constitution (First) amendment Act
1951 introduced „Public order‟ as an additional ground in Article 19(2) of the
Constitution.
109 Romesh
Thappar v. State of Madras,(1950)AIR SC 124,Brij Bhushan v.State of Delhi,(1950)
AIR SC 129,Superintendent, Central Prison v. Dr.Ram Manohar Lohia,(1960) AIR SC 633.33
It has been observed by Justice Subba Rao that the term public order in its most
comprehensive sense is so wide enough as to include all the grounds mentioned in
Article 19 (2) but as the Constitution details different species of public order in
the same clause, the term public order as used in Article 19(2), shall be
demarcated from the others and be given a specific meaning.110 The learned
judge, however, took the view that the term „public order‟ as used in Article 19
(2) is broad enough to include all activities against public tranquility and public
safety short of those affecting „Security of State.‟
He said:
“Public order is synonymous with public safety and tranquility; it is the
absence of disorder involving breaches of local significance in contradiction to
national upheavals, such as revolutions, civil strife, was affecting the security of
the State.”
This broad interpretation of the term „public order‟ was not accepted in toto in
subsequent cases. Although public order overlaps with public tranquility, it is
only partial. Public order includes all acts which are danger to the security of state
as well as insurrection, riot, turbulence or crimes of violence but not acts which
disturb only the serenity of others. For instance playing loud music in his own
house causing annoyance and disturbance to others, though may affect public
tranquility, cannot be deemed to be a violation of public order. The scope and
content of the expression public order and security of State has been stated by
Justice Hidayatullah in the following words:111
“One has to imagine three concentric circles. Law and order represents the
largest circle within which is the next circle representing public order and the
smallest circle represents security of state. It is then easy to see that an act may
110 Superintendent,Central Prison v. Dr.Ram Manohar Lohia, (1960) AIR SC 639.
111 Ram Manohar Lohia v. State of Bihar AIR (1966) SC 740 at 758-759.34
affect law and order but not public order just as an act may affect public order but
not security of India”.
In short, these pronouncements advocated that a restriction can be imposed in the
interests of public order only when there is some danger to the public at large
posing threat to public peace. A mere criticism of the minister cannot in the
absence of any proof regarding force be treated as a violation of public order. And
aggravated form of public order which undermines the very existence of state
either by preaching war or by internal rebellion constitutes a threat to security of
state.
Whether an activity endangers security of state of public order or one merely
affecting public tranquility depends on the degree of gravity of the act in question.
In the first two categories it appears that the State may impose a valid restriction
whereas in the third category no restrictions can be imposed under Article 19(2)
However, there is no watertight division between these categories and therefore,
much will depend upon the circumstances of the transaction. This, naturally,
confers a wide discretion on the authorities concerned. Discretion has to be
exercised properly in order to maintain reasonableness. While censoring films for
certification, the censorial authorities can ban a film or can order for deletion of
some scenes in films on this ground only when the above mentioned conditions
are satisfied. Here it must be emphasized that such objectionable matters in the