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November 26, 2015

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India’s Fifty Shades of Censorship: Should we care about Freedom of Speech?


- Radhika Dhanotia, [ Jindal Global Law School ]

censorship

Reservation and Equality both are opposite to each other but have been described as a right in the constitution of India. Equality on one side deals with the equal rights of the citizens and Reservation on the other side talks about the discrimination on the basis of educationally and socially backwards.

In March, 15’, the Central Board of Film Censorship banned the release of motion picture based on E.L James erotic novel “Fifty Shades of Grey” in the Indian Cinemas. This ban was passed even after the production house edited the dialogs and scenes that the review committee did not approve.

Perhaps this brings us into the pro-longed debate about censorship and the idea of Freedom of speech. Does censorship infringe the rights provided to each and every citizen under the Indian Constitution? Is it correct to restrict a person’s opinion with an excuse of reasonable restriction? Shouldn’t freedom of speech and expression mean absolute freedom?

The Indian Constitution under Article 19(1) (a) guarantees freedom of speech and expression to all those who are the citizen of the country . This also gives the citizens a right to express their views not only in written or verbal forms but also allows the citizen to express their opinions in form of books, movies, documentaries etc. The idea of freedom of speech and expression is simple, in a democratic set-up every person’s opinion should have voice and should be given an opportunity to put it forward without the government or the ruling body or anyone else for that matter interfering with the opinion put forward.

The government time and again has tried to curb the concept of “Freedom of Speech and Expression” into a desirable definition, granting allowance to those they feel fit and restricting everything else.

Censorship is, ‘The suppression or proscription of speech or writing that is deemed obscene, indecent, or unduly controversial.’ Under the fundamental right of Article 19, stands an exceptional clause which states that reasonable restriction can be applied to Article 19(1) (a) under a situation where the current regime feels that such expression is voilativein the interests of the sovereignty and integrity of India, 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.

The ban of motion picture, ‘Fifty Shades of Grey’ is a clear violation of Article 19(1)(a) of the Indian Constitution. This ban implies one thing for sure, that is the arbitrary application of laws. The policy makers and the Indian judiciary always keep talking about the constant need for a revolution in the way laws are interpreted but censoring a worldwide phenomena is obviously not a liberal interpretation of our laws.

The concept of censorship reflects the mindset of a society , are we preparing ourselves for a rigid setup where writers and producers can’t put their work for public display just because they offend the views of some? Agreed that freedom comes with a sense of responsibility, but that responsibility should’ve allowed the release of the movie after the necessary editing was made in the movie. You can’t create art without offending someone but shouldn’t restriction be made only on the ground of disturbance of public order in such a manner that it leads to riot.

I wonder what riot can be created by a motion picture; all the other countries that released the movie in its original form seem to be in peace even months after the release. Thecensor board deprived the circulation of movie simply because they feel it affects a set of people who don’t even have a direct connection to it but at the same time they are depriving people with their right as a viewer, anyways it’s a fictional creation with fictional characters.

Indeed the Indian Constitution states, ‘things that are indecent and immoral should be curtailed,’ but do we have rubric to check what stands as being indecent and immoral. The ‘Community Test’ that has been created by the judiciary states that the matter is considered legitimate until it doesn’t have any social value added and what a reasonable person would react like while viewing the movie. A reasonable person would not have sexual feelings arising just by watching the movie, and even if it does, what is wrong with having sexual thoughts per say.

Another dimension to this phenomenon is that irrespective of the impact that a movie creates, absolute ban shouldn’t be imposed before checking for all possible outcomes.

Similarly, Madras HC in S. Rangarajan v. P Jagjivan Ram ,revoked the U certificate that was issued to a film on the grounds that the exhibition of the same would disrupt the public order and cause violence in the society. This was reversed in the appeal following wherein court clear stating that movies can’t be banned only on the ground of threat of demonstration and processions or threat of violence. It is the obligatory duty of the State to protect the freedom of expression of the citizens and the state cannot go on banning movies on the grounds that it won’t be able to handle the hostile audience problem.

The intention of the constitution makers while drafting the fundamental rights was to provide absolute freedom of speech and expression under Article 19. Free flow of ideas should not be curbed just based on the notion that there will be a problem of peace and security in the country. Flexibility in determining what amounts to public decency needs to be reconsidered, we can’t interpret the statutes as they were drafted in 1949. A more liberal approach is required, also a balance between what is considered as absolute freedom and what the government does, have to be maintained.

1. See Generally, SHILPA JAMKHANDIKAR, Indian Censors Ban Fifty Shades of Grey from Cinema , 2015 , Mar. 05, 2015 at (2015), http://in.reuters.com/article/2015/03/04/film-fiftyshades-india-idINKBN0M01TV20150304 (last visited Nov. 1, 2015).
2. The Indian Constitution, 1949 art 19(1)(a), “All citizens shall have the right to freedom of speech and expression.”
3. Blacks Law Dictionary
4. the Indian Constitution,1949 art19 (2)
5. Potter Stewart (former US Supreme Court Justice)
6. 1989 SCR (2) 204, 1989 SCC (2) 574

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