|Name of the case||K.A. Abbas v. The Union of India & Anr|
|Citation||1971 AIR 481, 1971 SCR (2) 446|
|Year of the case||24th September 1970|
|Respondent||The Union of India & Anr|
|Bench||Chief Justice Hidayatullah, Justice Shelat, Mitter, Vidyialingam, and Ray.|
|Acts Involved||The Constitution of India, The Cinemograph Act 1952.|
|Important sections||Article 19(1) (a) of Indian Constitution, Section 5-B (2) of The Cinemograph Act 1952.|
Freedom of Speech and Expression is one of the most sacrosanct rights guaranteed by the Constitution of India. It is also regarded as an integral concept in most of the modern democracies across the globe. Cinema is a mode of expression of thoughts, ideas, and views, and being the part of Article 19(1)(a) of the Indian Constitution it enjoys protection as conferred. However, the reasonable restrictions as imposed on Article 19(1)(a) can similarly be imposed on the mode of expression – Cinema. Restrictions on Cinema are articulated under The Cinematograph Act under which all the guidelines of certification as well as provisions to avoid arbitrariness are mentioned.
In India, Cinema is regulated by The Cinematograph Act, and a regulatory body called The Central Board of Film Certification is set up according to the Act which primarily takes the task of certification of films for public exhibition. Thus, it can be said a body of rules and regulations are set but to date, the arbitrariness and impartiality prevail, and the judiciary here plays as a legal protector to uphold the rule of law and provide justice.
Cinema is known as a creative and artistic form of expression of one’s views, ideas, opinions, and thoughts which can be inspired by reality, fictional thoughts, musical scenarios, to entertain and enchant. It was been one of the potent tools of expression for a long time ago. Cinema has always acted as a medium through which a larger scenario of societal lives has been depicted on the screen. It has also acted as a source of inspiration and introspection at the same time. Cinema as a perfect tool for the change in society has acted as a medium to promote positive and required change in society.
However, being one of the major sources of entertainment as well as a medium of expression of thoughts and views, Cinema like any other freedom of speech and expression is limited or kept under check through reasonable restrictions. Cinema has undoubtedly contributed to the social and cultural development of India. Press and Cinema as termed to be the medium of communication and both are considered at the status so far, the constitutional freedom of speech and expression is concerned.
However, both of these mediums are not absolute and reasonable restrictions can be imposed. For this purpose, we have the Cinematograph Act. 1952. The Act provides for the establishment of a ‘Central Board of Film Certification’ as a regulatory body in India to issue certificates to the makers of the films.
K.A. Abbas v. Union of India is the first case where the question relating to the censorship of films arises. In this case, the Supreme Court considered an important question relating to the pre-censorship of films concerning the fundamental right of freedom of speech and expression conferred by Article 19(1) of the Indian Constitution.
This case analysis shall outline the background and major facts of the landmark case of K.A. Abbas v. Union of India, proceeding with highlighting the issues involved, related provisions, cases referred and, in the end, shall discuss the final verdict and concepts that gained importance because of this judgment.
Background of The Case
In different countries, films are censored to monitor the different social, economic as well as political issues it can create which may promote or spread hatred to masses. In India, under the Cinematograph Act of 1952, there is very little scope of censorship but the censorship that is permitted to safeguard interests at large is only done if they fall under the specific conditions of reasonable restrictions.
This case involves the petition of the appellant under Article 32 of the Constitution of India for the enforcement of Fundamental Rights. The Petitioner challenges the rules prescribed Central Government under part 11 of the Cinematograph Act of 1952 as unconstitutional and void. Petitioner asks for a writ of mandamus or any appropriate writ, direction, or order against the deletion of certain shots from the documentary film.
Khwaja Ahmad Abbas, a Bollywood director was also a member of the GD Khosla Committee on Film Censorship, 1969. His movie, A Tale of Four Cities, better known as Char Sheher Ek Kahaani was based on the contrasting lifestyles in four of the most prominent cities of the country at the time, Bombay, Calcutta, Delhi, and Madras.
The movie tested the Censorship Committee’s political liberalist claims along with creating a shock wave in the judiciary by questioning the relationship between fundamental rights and the Cinematograph Act, 1952. The film had scenes portraying the red-light districts in Bombay which proved to be the most problematic for the Censorship Board and the Judiciary. The director was adamant that the scenes had to be shown, at least with a ‘U’ certificate, if not without any restrictions at all.
The Censor Board’s Examining Committee proposed that a ‘U’ certificate be granted only if the public viewing was restricted to an audience of just adults. An appeal was filed thereafter, to which the court responded with an order recommending a ‘U’ certificate if some scenes from the red-light area, which depicted immoral trafficking, economic exploitation, and prostitution, were cut.
The petitioner filed the present petition contending that his freedom of speech and expression was denied, that the provisions of the Cinematograph Act, 1952 were unconstitutional and void and that he was denied the ‘U’ certificate that he was entitled to. Meanwhile, the Central Government agreed to grant the ‘U’ certificate without demanding any cuts to be made in the film.
The petitioner then requested to be allowed to amend his petition in light of the altered situation, which was accepted by the court. The petitioner then contended that the provisions of the Act and the power is given to various authorities and bodies under the Act were vague, arbitrary, and indefinite and also questioned the purpose of pre-censorship.
- Whether pre-censorship by itself offend the freedom of speech and expression or not?
- Even if there is a legitimate restraint on freedom, it must be exercised within the definite principles and no scope of arbitrariness or not?
Cinematograph Act, 1952
“5B. (1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against 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 involves defamation or contempt of court or is likely to incite the commission of any offense.
(2) Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.”
This provision gave the Central Government the power to issue any such directions as it may think fit to preserve “… decency and morality.”. In contrast to the purpose of the provision, in the present case, the Central Government in the exercise of its power under section 5B of the Act, issued orders on the 3rd July 1969 further restricting granting of the ‘U’ certificate than was necessary. The general principles which are stated in the directions given under section 5B (2) seek to do no more than restate the permissible restrictions as stated in clause 2 of Article 19 of the Constitution.
Article 19 of Constitution of India
Article 19(1)(a) of Constitution of India, it mentions that all the citizens of India must have the freedom of speech and expression, however, under clause 4 of Article 19 of Indian Constitution, reasonable restrictions can be imposed in the interest of public order or morality or sovereignty and integrity of India. In the instant case, the petitioner argues whether the restrictions can be imposed by granting of ‘A’ certificate to the film and it was held by the Apex court that these restrictions can be imposed in the interest of public order, peace, and security.
Related case laws
In the case of Rangarajan v. P.Jagivan Ram, The Supreme Court of India zealously protected the freedom of expression and overturned the decision of Madras High Court which revoked a U certificate awarded to the film Ore Oru Gramathile on the ground that government policy reservation system as portrayed in the film may cause widespread law and order problem in Tamil Nadu. When the matter went as an appeal to the Supreme Court, the apex court demolished the state argument and stated that “The State must protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem”.
In another case of Bobby Art International v. Om Pal Singh Hoon, the petitioner filed a petition asking the court to quash the certificate of the exhibition for the screening of the film ‘Bandit Queen’ and also to restrain its exhibition within India and pleaded that this film depicts the life story of Phoolan Devi and the way the rape scenes are depicted in this film it is a slur to womanhood in India and also contended that depiction of Gujjar community promoted moral depravity to a particular community. It was held by the apex court that the decision of Tribunal in granting of ‘A’ certificate to the film is valid and stated that “The film must be judged in its entirety from the point of overall impact. Where the theme of the film is to condemn degradation, violence, and rape on women, scenes of nudity and rape and use of expletives to advance the message intended by the film by arousing a sense of revulsion against the perpetrators and pity for the victim is permissible”.
In Shree Raghavendra Films v. Government of Andhra Pradesh, the exhibition of the film ‘Bombay’ in its Telugu version was suspended in the exercise of powers under section 8(1) of the A.P Cinemas Regulation Act, 1955 despite being certified by the Censor Board for the unrestricted exhibition. The suspension was imposed because the film may hurt sentiments of certain communities however, the court discovered that the authorities who imposed those suspensions did not even watch the film and thus the court quashed this arbitrary suspension.
In a recent case of Phantom Films Pvt. Ltd and Anr v. The Central Board of Certification involving the controversy of the film ‘Udta Punjab’ where the Central Board of Film Certification refused to certify the film because it promotes and highlights the drug menace in the state of Punjab and in addition to that suggested cut of 13 major scenes. However, the Court observed and criticized the Central Board of Film Certification for its conduct and stated that the Board is not necessarily entitled to censor the films. The word ‘censor’ is not mentioned in The Cinematograph Act and that the board can make changes in the film and Central Board of Film Certification but should exercise its power in consonance with the Constitutional provisions and Courts orders.
The court stated that “The ultimate censorious power over the censors belongs to the people and by indifference, laxity or abetment, pictures which pollute public morals are liberally certificated, the legislation, meant by Parliament to protect people’s good morals, maybe sabotaged by statutory enemies within. Corruption at that level must be stamped out. And the Board, alive to its public duty, shall not play to the gallery; nor shall it restrain aesthetic expression and progressive art through obsolete norms and grandma inhibitions when the word is wheeling forward to glimpse the beauty of creation in its myriad manifestations and liberal horizons. A happy balance is to “…. consider, on the one hand, the number of readers they believe would tend to be depraved and corrupted by the book, the strength of the tendency to deprave and corrupt, and the nature of the depravity on corruption; on the other hand, they should assess the strength of the literary, sociological and ethical merit which they consider the book to possess. They should then weigh up all these factors and decide whether on balance the publication is proved to be justified as being for the public good.” thus, the court held that the film must be given ‘A’ certificate.
As held in the landmark case of K. A. Abbas v. Union of India, Chief Justice Hidayatullah, Justice Shelat, Mitter, Vidyialingam and Ray delivered their judgment and stated that court does not accept the distinction between pre-censorship and censorship in general and observed that both are to be governed by the standard of reasonable restrictions within the Article 19(1) of Indian Constitution.
The Constitution has recognized that freedom of speech and expression is not an absolute right and reasonable restrictions can be imposed. Pre-Censorship was permitted under the Constitution for public order and to uphold the rule of law. The Judiciary is regarded as a legal protector in preserving public interest and ensure justice.
Concerning the issue of insufficient guidelines in the Act, the court held that guidelines as provided within Article 19(1) of the Indian Constitution are clearly stated and sufficient. But the distinction between the artistic expression and non-artistic expression in assessing obscenity needs better clarity. The Court observed he cannot be the whole reason to strike down the provisions of the Act.
Thus, the Apex Court upheld the restrictions on public exhibition under the Cinematograph Act, 1952 and thereby rejected the petition that challenged the power of censorship and stated that pre-censorship fell under the reasonable restrictions permitted under freedom of speech and expression and that the Act provides the means and provisions to avoid arbitrariness in the exercise of the powers conferred.
- Freedom of Speech and Expression– Cinema is an instrument of expression of ideas and thoughts and this should not be restricted from any kind of censorship. Restriction of any kind must not infringe on the basic human right of an individual to express their views.
- Reasonable Restrictions– However, at the same time one must keep in mind that with rights conferred, the duty to practice those rights is on the same individuals. If the peace and law and order situation is disturbed or harmed by one’s expression of thoughts, Restrictions can be imposed.
- A Balanced Approach– Henceforth, to maintain a balance between the right to freedom of speech and expression and the duty to maintain peace and security in the nation. A balanced approach by the authorities should be applied. In case of reviewing a film or giving a certification of approval, the authorities should strike a balance of harmony where the right of freedom of speech and expression, as well as a sense of peace and security, prevails.
- The Supremacy of Constitution– It has been stated that to curb the arbitrariness and safeguards the rights, the Constitution of India is sufficient, absolute, and supreme to ensure justice and impartiality.
 (1989) 2 S.C.C. 574.
 (1996) 4 SCC 1.
 1995 (2) ALD 81
 (2016) FL SCC 67.