censorship

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All You Need To Know About Film And Video Censorship Laws In India

From our friends at
LawRato

August 25th, 2018

SHARES

Interestingly, the first ever cinematograph legislation was born out of a “fire”. In the earlier days of cinema, the camera films that were used to project the movies contained an element called nitrocellulose, used in guncotton as an explosive. Later, this element was mixed with camphor and it became nitrate, which isn’t explosive but still violently flammable. A year and a half after the first film was ever screened, a nitrate fire broke while the screening of a movie in Paris in 1897, killing 126 people. A few other incidents took place in the next decade and the world’s first cinematograph legislation was passed in Great Britain in the year 1909.

In this article, the legal aspect of Indian cinema and online video content is discussed- in context with the censorship laws in India, and the recent boom in the video content industry with a wide range of content being posted on the internet, available to a worldwide audience.

PART 1

What is Censorship?

Censorship is the process through which the content that might be inconvenient for public viewing is regulated. In other words, it refers to restricting the flow of ideas and information among the general public to maintain public peace and so that the subject matter of such ideas or information does not violate the public sentiments.

Article 19(1)(a) in the Constitution of India provides us with the Fundamental Right to speech and expression. It gives us the freedom to express our thoughts unrestrained by the fear of retribution. The Constitution is silent as to the medium of communication of ideas, however, it includes the freedom to publicly display a work of art including motion films. In spite of that, this right is not absolute and is subject to certain reasonable restrictions if the subject matter being exhibited is against public policy, foreign relations, sovereignty and integrity of the state, public order, decency and morality, or in relation to contempt of court, defamation or inducement of an offense as stated in Article 19(2). Thus, in India, censorship of film content is fully justified under the Constitution as it is for the benefit of the society.

Laws governing censorship of films in India

The Cinematograph Act is a central legislation that regulates the censorship of films and TV shows in India. The Act came into force on July 28, 1952, and provides for the establishment of Censor Board of Film Certification (CBFC) to keep a check on the content which is presented to the viewers through films.

The filmmakers intending to exhibit their cinema are required to submit an application before the Censor Board for its examination. The Censor Board after examining the film grants a certificate to it on the basis of its contents. The Board may also suggest modifications of the content, or even refuse to sanction the film completely.

There are various certificates granted by the Censor Board to different film categories.  “U” is for the films which are suitable to be viewed by all audiences; “U/A” for films which are suitable to be viewed by children under the supervision of their parents; “A” for films which are not suitable for audience below the age of 18, and “S” if the screening is restricted to specific audiences. These certificates are given in practice of reasonable restrictions on the right to freedom of speech and expression provided by the Indian Constitution.

The government has banned various movies under the practice of reasonable restrictions on many occasions. Some controversies have also arisen on the subject matter of various movies such as Bandit Queen, Padmavat, Bajirao Mastanietc., which resulted in banning the movies in some regions of India.

PART 2

What about the censorship of video content on web?

Unlike in case of Films, the online video streaming websites do not have any obligation to censor their content, or get a certificate, or get their content screened before uploading on the internet, especially in case of websites like Youtube.  There is no law in India that regulates censorship of films and shows that are streamed online.

The Cinematography Act only regulates the censorship of films intended to be released in theatres, home media, and TV. The Ministry of Information & Broadcasting, in response to a Right to Information application in which it was asked about the laws governing web content, stated that the current law does not govern web content and it is not looking forward to censoring content online.

Since the Censor Board does not have jurisdiction on the video content being uploaded on the internet, if the filmmakers do not want the Board to scissor their films, the trend is to release these films on the Internet. The movie “Unfreedom” is an example of one such movie that was released on Netflix, uncensored, as the Censor Board refused to give it a certificate due to its homosexual content, stating that it would ignite “unnatural passions” among the audience.

Netflix also recently released Sacred Games as India’s first Original Series, which has evoked a line of criticism in India despite all the worldwide critical acclaim it received. The reason being the adult content, violence and the abusive dialogues which are an integral part of the show. The controversy revolving around the show is also that Nawazuddin Siddiqui’s character in the show has allegedly abused the former Prime Minister Rajiv Gandhi.

Legal status of censorship and banning of video content streamed online

Even though there are no censorship obligations to be followed in case of online video streaming, the Government still has the power to block altogether any URL or website under Section 69A of the Information Technology Act, 2000 in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to commit any cognizable offence. In this regard, the government has also notified Information Technology Rules, 2009 to regulate content on web which includes video content, sound clips and even written articles.

In 2015, the Department of Telecommunications (DoT) had directed the Indian Internet Service Providers (ISP) to block 857 pornographic sites underSection 79(3)(b) of the Information Technology Act, 2000 (IT Act). The intention behind blocking the pornographic websites was to block those that were dealing with child pornography. Similarly, in 2017, on the recommendation of a government committee, around 1,329 social media URLs were blocked or removed because they contained “objectionable content”.

Furthermore, the Telecom Regulatory Authority of India (TRAI) is assessing a consultation process to construct a framework to regulate online video streaming platforms like Netflix, Amazon Prime and Hotstar, etc. on requests made by some of the stakeholders of the film industry.

PART 3

The Debate

Hence, there is an everlasting debate as to what should be and should not be banned or censored, or whether anything should be banned at all, considering the right to freedom of speech and expression safeguarded by the Constitution of India.

However, people not in favour of the ban oppose it by saying that the audience should be given the freedom to form their own opinions about the movies by giving an opportunity to watch them, and that artistic expression is a fundamental right. Those who support the censoring of movies argue that restricting its content protects the vulnerable audiences like children, who easily get influenced by watching films and videos that contain offensive / violent/inhumane content. Judiciary plays a pivotal role in intervening when fundamental rights are affected, whether directly or indirectly as even in the case of censorship. If you want to know more about Fundamental Rights, you can get in touch with legal experts here.

Recently, Shashi Tharoor, introduced the Cinematograph (Amendment) Bill, 2018 in the Parliament. The Bill aims at making the CBFC a ‘certification body’ rather than a ‘censorship body’ and abolishing the State’s power to ban movies (Section 6 of the Cinematograph Act). However, there is no mention in the bill to censor web content.

In this confusion, though, one clear thing is that a refurbishment is required in the laws- both for cinema and online video content, thus attempting to find a middle ground between the opposing views.

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