Mohalla Assi movie: Delhi HC Upholds Freedom of Expression of Artists

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December 13, 2017

This recent judgment of the Delhi High Court in the case of Crossword Entertainment Private Limited v. Central Board of Film Certification & Ors. analyzes the Law pertaining to film certification and recognizes the freedom of speech and expression of artists. It culls down to the principle that in a democracy the freedom of expression and creation of an artist cannot be throttled by citing religious and political issues and the apprehended adverse impact of depiction of social evils in a movie on society.

Factual Matrix in the case- In the case, the certification of movie “Mohalla Assi” was disputed. The Petitioner in the case has challenged FCAT’s (Film Certification Appellate Tribunal) order as well as CBFC (Central Board of Film Certification) order, whereby the Respondents have declined to issue a Certificate for exhibition of the film “Mohalla Assi”. The Petitioner in the case also sought a direction to CBFC to give the requisite Certificate to the Film without any cuts/modifications/excisions. The disputed film “Mohalla Assi” is based on a Hindi Novel “Kashi Ka Assi” of Shri Kashinath Singh. It is stated to be a satire on the globalization of the pilgrimage city Varanasi (Banaras) and the challenges that Varanasi and its culture may face due to sweeping changes brought in by liberalization.

According to FCAT the film dealt with both political and religious issues which were sensitive in nature and therefore required certain modifications. FCAT directed the Petitioner to incorporate 10 cuts/excisions in the movie for certification. The respondents also contended that the film has to be judged in its entirety and from the point of view of its over-all impact.

Court’s order and observation

Characters and incidents in a movie identifiable with actual personalities– That both the FCAT and CBFC were of the view that certain characters and incidents were identifiable with actual personalities and individuals. This again is a most impermissible ground to reject the certification of a film. The Court remarked that the protection of the Constitution does not extend only to fictional depictions of artistic themes. Artist, film makers and play rights are affirmatively entitled to allude to incidents which have taken place and to present a version of those incidents which according to them represents a balanced portrayal of social reality.

Film that illustrates the consequences of a social evil necessarily must show that social evil– The Court also made reference to Supreme Court’s judgment in the Bandit Queen case[1], wherein the Court categorically stated that “a film that illustrates the consequences of a social evil necessarily must show that social evil.” No film that extols the social evil or encourages it is permissible, but a film that carries the message that the social evil is evil cannot be made impermissible on the ground that it depicts the social evil.

Examination of the work as a whole by the Censor Board– To illustrate this aspect Delhi High Court made reference to the case of Phantom Films Private Limited Vs. The Central Board of Certification[2], wherein the Court dealt with the controversial flick Udta Punjab. In this case, the Bombay High Court elaborated the concept of examination of the work as a whole by the Censor Board in the following words:

“Once the test is that the work must be seen as a whole and viewed in entirety, then, it will not be permissible to pick and choose isolated scenes or events or characters. It will not be permissible to pick up some lines from some scenes and few dialogues and read them out of context. We have noted that there is no denial of the fact that “Udta Punjab” is a film depicting the menace of drugs. The backdrop and setting chosen is of the State of Punjab. It is open to a creative person to choose a particular setting and backdrop and move his story forward with due regard to the same. It is entirely for him to choose the underlying theme and story line. The creative freedom envisages presentation of certain works as per the choice of the maker or writer. None can dictate to him as to how he should produce or make his film and what should be the contents thereof. One acting as a Board of Film Certification is not obliged to censor films.

Use of swear words in a film- In this context reference was made to the Bandit Queen case, wherein the Supreme Court had opined that Too much need not, we think, be made of a few swear words the like of which can be heard every day in every city, town and village street. No adult would be tempted to use them because they are used in this film.

The Delhi High Court in the case summarized the Principles pertaining to a movie depicting religious and political issues which are sensitive in nature as under: 

  • That Films are regarded as constituting a powerful medium of expression.
  • Artists, writers, play rights and film makers are the eyes and the ears of a free society. They are the veritable lungs of a free society because the power of their medium imparts a breath of fresh air into the drudgery of daily existence.
  • Their right to communicate ideas in a medium of their choosing is as fundamental as the right of any other citizen to speak.
  • Our Constitutional democracy guarantees the right of free speech and that right is not conditional upon the expression of views which may be palatable to mainstream thought. Dissent is the quintessence of democracy. Hence, those who express views which are critical of prevailing social reality have a valued position in the constitutional order.
  • Dissent in all walks of life contributes to the evolution of society. Those who question unquestioned assumptions contribute to the alteration of social norms. Democracy is founded upon respect for their courage. Any attempt by the State to clamp down on the free expression of opinion must hence be frowned upon.
  • Films which deal with controversial issues necessarily have to portray what is controversial.
  • The director has available to him all the tools of trade. Satire, humor and the ability to shock each one out of the mundane levels of existence is what embellishes are forms.
  • The Constitution protects the right of the artist to portray social reality in all its forms. Some of that portrayal may take the form of questioning values and mores that are prevalent in society. The power of literature lies in the ability of the writer to criticize commonly held beliefs and ordinary human foibles. Equally, a writer, producer and director of a film have the discretion to depict the horrors of social reality.
  • That it is impermissible ground to reject the certification of a film on the ground that certain characters and incidents are identifiable with actual personalities and individuals.
  • Stability in society can only be promoted by introspection into social reality, however grim it be.
  • The constitutional protection under Article 19(1)(a)that a film maker enjoys is not conditioned on the premise that he must depict something which is not true to life. The choice is entirely his. Those who hold important positions must have shoulders which are broad enough to accept with grace a critique of themselves, critical appraisal is the cornerstone of democracy and the power of the film as a medium of expression lies in its ability to contribute to that appraisal.
  • That no film that extols the social evil or encourages it is permissible, but a film that carries the message that the social evil is evil cannot be made impermissible on the ground that it depicts the social evil
  • That 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.
  • That 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 man 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, it cannot be helped.
  • Ideas having redeeming social or artistic value must also have importance and protection for their growth. Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral.
  • That it is open to a creative person to choose a particular setting and backdrop and move his story forward with due regard to the same. It is entirely for him to choose the underlying theme and story line.
  • That Adult Indian citizens as a whole may be relied upon to comprehend intelligently the message and react to it, not to the possible titillation of some particular scene.
  • In view of the aforesaid principles and precedents, the Delhi High Court set aside the impugned orders of FCAT and CBFC and directed the CBFC to certify the film restricted in its exhibition to the adult audience. The Delhi High Court only sustained 1 cut out of the 10 cuts imposed on the movie by FCAT.

The case at hand gives a detailed analysis of CBFC’s role in examining movies and the fetters that can be administered on Freedom of Speech and Expression of an artist. The Delhi High Court’s judgment clearly established two legal propositions relating to certification of films:

  • That a film that carries the message that the social evil is evil cannot be made impermissible on the ground that it depicts the social evil
  • That it is impermissible ground to reject the certification of a film on the ground that certain characters and incidents are identifiable with actual personalities and individuals.

 

 

 

[1] Bobby Art International v. Om Pal Singh Hoon

[2] 2016 (4) ARB 593