Mdeii life: A Code of Political Vagueness

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Monday, June 05, 2006

A Code of Political Vagueness

Unlike America, India does not have an unqualified law on freedom of speech and expression, in the league of the first amendment. (There is a text book question that goes something like this: "The first amendment to the American constitution upheld freedom of expression, whereas the first amendment to the Indian constitution killed it—explain.")

The Cinematograph Act (1952) derives its raison d'etre from Article 19 (2) of the Indian Constitution which qualifies our right to freedom of speech and expression (guaranteed in Article 19 (1)(a)), and seeks to impose reasonable restrictions in the interests of the sovereignty and integrity of India (the Indian first amendment inclusion), the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

Now getting to the Act itself, the best way to understand it is to pick your own way through it here. Another way is to go through a case in the Delhi High Court, where the law was challenged for the first time—a case I acquainted myself with for my Anna University dissertation (Yeah, they do teach media law in a few courses in Anna University).

The case of K. A. ABBAS, PETITIONER v. THE UNION OF INDIA AND ANOTHER, RESPONDENTS. 1970-(002)-SCC -0780 -SC
Writ Petition No. 491 of 1969 (Under Article 32 of the Constitution of India for
enforcement of Fundamental Rights) decided on September 24, 1970.

Judgement was delivered by Hidayatullah C.J.

Unfortunately, I have not been able to locate an internet link to the entire judgment, but I have had the full text with me for a couple of years now.

It is to be noted that fair criticism applies here.

To put it in a nutshell, KA Abbas had made a shot social documentary called a Tale of Four Cities (1968) that showed images of the Bombay red-light district with 'inmates in abbreviated skirts'; and a scene 'suggestive of soliciting'. According to Cinematograph guidelines (as existed then), the film was given an 'A' certificate. Abbas protested. A 'U' certificate, the board said, would be awarded, if cuts were made. Abbas went to court. After an initial hearing, the board relented and Abbas then requested an amendment to the petition.

Paragraphs 7 & 8 of the Judgment

7. The petitioner then asked to be allowed to amend the petition so as to be able to challenge pre-censorship itself as offensive to freedom of speech and expression and alternatively the provisions of the Act and the rules, orders and directions under the Act, as vague, arbitrary and indefinite. We allowed the application for amendment, for the petitioner was right in contending that a person who invests his capital in promoting or producing a film must have clear guidance in advance in the matter of censorship of films even if the law of pre-censorship be not violative of the fundamental right.

8. When the matter came up for hearing the petitioner raised four points:
(a) that pre-censorship itself cannot be tolerated under the freedom of speech and expression, (b) that even if it were a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no room for arbitrary action, (c) that there must be reasonable time-limit fixed for the decision of the authorities censoring the film, and (d) that the appeal should lie to a court or to an independent tribunal and not the Central Government.

The Solicitor General conceded (c) and (d) and the guidelines are in place to this day (and an amendment to section 5-C(c) of the Act). Interestingly enough, this spirit of keeping the legislature or the 'government' out of appeals and decision making has been belied many a time through our history, making film censorship a much more arbitrary process in the hands of politicians

Further on in the judgment, the Justice states that while there can be no room for arbitrariness when it comes to law, the guidelines (as they were then, and since changed, its present form available here) in accordance with section 5-B(2) of the Act, are not vague at all. It is an entirely debatable issue as to the validity and clarity of even the present guidelines and that would be a separate discussion in itself. As per the Act, these guidelines are to be formulated by the central government. This means that while 19 (2) of Constitution is protected in 5-B(1), other specific (additional) restrictions are put in place by the government of the day.

But then as the judgement goes on, things take an even different turn. The Justice feels in paragraphs 19 & 20 that the difference between Censorship and Precensorship is only a matter of timing, while in spirit, both are the same. He also goes on to state that the motion picture medium is to be treated differently when compared with other media

19. The first question is whether the films need censorship at all? Precensorship is but an aspect of censorship and bears the same relationship in quality to the material as censorship after the motion picture has had a run. The only difference is one of the stage at which the State interposes its regulations between the individual and his freedom. Beyond this there is no vital difference. That censorship is prevalent all the world over in some form or other and precensorship also plays a part where motion pictures are involved, shows the desirability of censorship in this field. The Khosla Committee had given a description generally of the regulations for censorship (including pre-censorship) obtaining in other countries and Hunning's book deals with these topics in detail separately for each country. The method changes, the rules are different and censorship is more strict in some places than in others, but censorship is universal. Indeed the petitioner himself pronounced strongly in favour of it in a paper entitled 'Creative Expression' written by him. This is what he said:
"But even if we believe that a novelist or a painter or a musician should be free to write, paint and compose music without the interference of the State machinery, I doubt if anyone will advocate the same freedom to be extended to the commercial exploitation of a powerful medium of expression and entertainment like the cinema. One can imagine the results if an unbridled commercial cinema is allowed to cater to the lowest common denominator of popular taste, specially in a country which, after two centuries of political and cultural domination, is still suffering from a confusion and debasement of cultural values.
Freedom of expression cannot, and should not, be interpreted as a licence for the cinemagnates to make money by pandering to, and thereby propagating, shoddy and vulgar taste."

20. Further it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism), a and its co-ordination of the visual and aural senses. The art of the cameraman, with trick photography, vistavision and three-dimensional representation thrown in, has made the cinema picture more true to life than even the theatre or indeed any other form of representative art. The motion picture is able to stir up emotions more deeply than any other product of art. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to emulate or imitate what they have seen. Therefore classification of films into two categories of 'U' films and 'A' films is a reasonable classification. It is also for this reason that motion pictures must be regarded differently from other forms of speech and expression. A person reading a book or other writing nor hearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture. Therefore the treatment of the latter on a different footing is also a valid classification.

Now, the thing is, the argument seems rather unsubstantiated and vague here. The differences between censorship and precensorship are much more complicated. And in their implications mean entirely different things. The argument regarding the peculiar persuasive quality of films is yet to distinctly proven with any sociological data. As a filmmaker, I am pretty certain of one thing. The audience are not merely passive receivers who are mesmerised enough to unquestioningly accept everything on screen. The much touted 'willfull suspension of disbelief', and that for a very short span of time, is entirely voluntary. Moreover, in an age that is saturated with audiovisual content, unproven assumptions from an earlier era of film-as-novelty would not hold any water. Yet, this is the same argument in our law, that is used to ban The Da Vinci Code—the film, and not The Da Vinci Code—the book.

The Judgment, then in response to the petitioners queries, in length goes on to discuss freedom of speech in American law, to the conclusion that American law in essence permits censorship. Nevertheless, it is the very Indian discussions that are more interesting.

38. To begin with our fundamental law allows freedom of speech and expression to be restricted as clause (2) itself shows. It was observed in Ranjit D. Udeshi v. State of Maharashtra : ((1965) 1 SCR 63 at 70)
"Speaking in terms of the Constitution it can hardly be claimed that obscenity which is offensive to modesty or decency is within the constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions, or for the advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292, Indian Penal Code, manifestly embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public decency and morality."
We adhere to this statement and indeed it is applicable to the other spheres where control is tolerated under our fundamental law....

I do not know how American law deals with such a debate vi-a-vis the first amendment, but in my consideration, the assumption that 'obscenity' 'depraves', itself is too reductive, leave alone a definition of 'obscenity'. Then come the principles that seem to be so cherished in Indian law, where there seems to be an onus on 'free speech' to be only of 'beneficial use'. Here again, 'beneficial' is rather vague to be defined; but certainly 'not deprave' is not the same as 'beneficial'.

Paragraph 44 shows that the 'void for vagueness' argument cannot be used in Indian law as the due process of Indian law is different, but it is conceded in paragraph 46, that the reason why vagueness is not permitted in Indian law is because of possibility of misuse in infringement of fundamental rights. But going into specifics of direction as per 5-B(2) as they existed then, the justice states that they are not vague at all.

In paragraph 48, the Justice states that there is a distinction when it comes to 'artistic treatment of material'. But again, when dealing with the Khosla Committee recommendations, there seems to be a rather Cartesian view of art and obscenity.

(6) Where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity to trial and insignificant that it can have no effect and can be overlooked.

Even while 'obscenity' itself could be legally defined, 'art' cannot be. And further in the Khosla Committee recommendations

(9) Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech or expression. Obscenity is treating with sex in a manner appealing to the carnal side of human nature of having that tendency. Such a treating with sex is offensive to modesty and decency.

Here is a reference to the archaic notion of a 'redeeming message' as the test of obscenity. But interestingly enough, and this is what makes this such a fascinating judgment, the last few paragraphs are really well thought out.

49. We may now illustrate our meaning how even the items mentioned in the directions may figure in films subject either to their artistic merit or their social valued over-weighing their offending character. The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life an society with some of its foibles along with what is good. We must not look upon such human relationships as banned in toto and for ever from human thought and must give scope for talent to put them before society. The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal form and the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman's legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth. Sex and obscenity are not a always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censor's scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother. When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes. No one after viewing these episodes would think the patricide or incest with one's own mother is permissible or suicide in such circumstances or tearing out one's own eyes is a natural consequence. And yet if one goes by the letter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection. If that were so Verrier Elwyn's Phulmat of Hills or the same episode in Henryson's Testament of Cressaid (from where Verrier Elwyn borrowed the idea) would never see the light of the day. Again carnage and borrowed may have historical value and the depiction of such scenes as the Sack of Delhi by Nadirshah may be permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila. If Nadir Shah made golgothas of skulls, must we leave them out of the story because people must be made to view a historical theme without true history ? Rape in all its nakedness may be objectionable but Voltaire's Candide would be meaningless without Cunegonde's episode with the soldier and the story of Lucrece could never be depicted on the screen.

50. Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the censor's scissors but how the theme is handled by the producer. It must, however, be remembered that the cinematograph is a powerful medium and its appeal is different. The horrors of war as depicted in the famous etchings of Goya do not horrify one so much as the same scenes rendered in colour and with sound and movement, would do. We may view a documentary on the erotic tableaux from our ancient temples with equanimity or read the Kamasutra but a documentary from them as a practical sexual guide would be abhorrent.

51. We have said all this to show that the items mentioned in the directions are not by themselves defective. We have adhered to the 43 points of T.P. O'Connor framed in 1918 and have made a comprehensive list of what may not be shown. Parliament has left this task to the Central Government and, in our opinion, this could be done. But Parliament has not legislated enough, nor has the Central Government filled in the gap. Neither has separated the artistic and the socially valuable from that which is deliberately indecent, obscene, horrifying or corrupting. They have not indicated the need of society and the freedom of the individual. They have thought more of the depraved and less of the ordinary moral man. In their desire to keep films from the abnormal, they have excluded the moral. They have attempted to bring down the public motion picture to the level of home movies.

52. It was for this purpose that this Court was at pains to point out in Ranjit D. Udeshi's case certain considerations for the guidance of censorship of books. We think that those guides work as well here. Although we are not inclined to hold that the directions are defective in so far as they go, we are of opinion that directions to emphasize the importance of art to a value judgment by the censors need to be included. Whether this is done by Parliament or by the Central Government it hardly matters. The whole of the law and the regulations under it will have always to be considered and it the further tests laid down here are followed, the system of censorship with the procedural safeguards accepted by the Solicitor General will make censorship accord with our fundamental law.

53. We allow this petition as its purpose is more than severed by the assurance of the Solicitor General and what we have said, but in the circumstances we make no order about costs.

While in many parts, the judgement seems to be fairly mired in the sensibilities of an era which I cannot relate to, it does make certain points that are valid to this day including the role of the Central Government. Unfortunately though, there seems to be a definite lack of judicial activism in an era which seemed to transact a lot based on as much good-will.

I have recently shared with two people personal rants about why there is, in India, an overwhelming desire to be illogical, and rely on platitudes and generalisations for everything, including where there is a need to be specific.

Nilu and I had come to an agreement and he had also stated that India a quasi-functional anarchy where, because the rule of law is not practiced in most cases, the system runs by itself, based on a myriad of abstractions. Could it be because codified abstractions are harder than random ones?

Of course, however specific laws may be, their fundamental premises lie in a few abstract notions themselves like freedom, and obscenity. In India in an atmosphere of absolute belief in abstraction, and that alone in most cases, legislation, and worse still, judicial judgements too, suffer. And because we do not have a 'void for vagueness' doctrine; and vagueness can only be questioned based on its possible infringement of fundamental rights, and considering the fact that our fundamental rights are not absolute, but qualified; we have a situation where one abstraction is countered by another set of abstractions.

So much for verbosity!