Author: Rahul Parihar[1],Student at Maharashtra National Law University, Nagpur (Maharashtra).
INTRODUCTION
Digital platforms have revolutionized the television and cinema industry. The conventional industries are strongholds of a few renowned creators where many other artists do not get their chance to shine. Digital platforms, known widely as ‘Over the Top Platforms’ or OTT platforms have presented endless possibilities to these not-so-established creators. Conventional platforms have their limits in the number and type of stories they can present. OTT platforms present many opportunities to both creators and viewers. The freedom to tell the story in their own way without being subject to any restrictions in their creative decision is the biggest advantage of OTT platforms.
A viewer can browse through contents of various genres and languages at any time at any place. A good internet connection and a subscription to a digital platform is all they need and the entertainment is available at viewer’s desire. The content on these platforms is very diverse. In India, the contents of digital platforms are not regulated like television shows and theatre releases. This offers the creators with more creative freedom. Many issues and topics can be presented flawlessly through these platforms which would not be possible if it were censored.
Recently, some of the content produced by these platforms were cause of many controversies in India. General debate is about hurting the sentiments of a particular religious or ethnic group, or promoting obscenity through their contents which is against the morals of our age-old society. Some people are demanding that the content from OTT platforms must be regulated and the Government of India seems to acknowledge this demand. The Ministry of Information and Broadcasting has issued a statement that soon they will release guidelines to regulate the OTT content. This sparked a heavy debate in India on whether this step was needed or not.
CENSOR BOARD OF INDIA
The movie releases in India have been under the regulation of the Central Board of Film Certification. It is a statutory body that comes under Ministry of Information and Broadcasting. It is commonly known as Censor Board. The Censor Board regulates the public exhibition of films under the provisions of the Cinematograph Act, 1952. The Certification process is in accordance with The Cinematograph Act, 1952, The Cinematograph (certification) Rules, 1983, and the guidelines issued by the Central government under section 5(B).
The following certificates are provided by the Censor Board:
- U for unrestricted public exhibition.
- UA for unrestricted public exhibition but with a word of caution that discretion required for children below 12 years.
- A for restricted to adults.
- S for restricted to any special class of persons.
The purpose of this Censor Board is to certify the suitability of feature films, short films, trailers, documentaries and theatre-based advertising for public viewing by means of screening and rating.[2] They have been regulating the content since the inception of cinema industry in India.
WHY FILMS ARE CENSORED IN INDIA?
To understand the reason behind the censorship of films, it is necessary to understand the impact cinema can produce on the masses of India. It is well known fact that India produces the greatest number of films in a year. India has the largest film industry in the world, making over 1250 feature films and larger number of short films every year. At a rough estimate, a total of about 15 million people sees films in India every day, either at its over 13,000 cinema houses or on the video cassette recorder or on the cable system. Thus, every two months, an audience as large as India ’s entire population flocks to its cinema houses.[3]
While the majority of the films are produced in Hindi language, the other industries produce films in Malayalam, Telugu, Tamil, Marathi and many other regional languages. It is one of the biggest movie industries of world and a profitable market for foreign movie makers. So, it is safe to say that impact of cinema on Indian audiences is very high. Many actors are given a God-like status by their fans. The Indian audience very intricately follow the cinema and is influenced by it.
When an industry holds that huge an influence over audience, the state felt necessary to keep tabs on what content is presented to them. Indian society is one of the oldest and it is established on the ancient values, morals of the respective religions of people; and these people are very sensitive about their beliefs. So, when someone challenges their morals and beliefs, most of them do not take it well. Being a British colony for years, the Indian society has undergone many changes. Lack of education and resources led the common people to cling on their age-old morals for survival for years.
The customs, rituals or moral beliefs of their religions and caste were so deeply embedded in the mindset of Indians that they became unshakable. India is a diverse nation. People of different religions, communities and ethnic backgrounds live here. So, it becomes necessary for a democratic nation to ensure there is peace and harmony between people. Cinema being a common and influential medium of entertainment, the CBFC was established to regulate the content released in India. Generally, a film is banned or censored when it tries to incite communal disharmony or challenge the morals and ethics that Indian society deeply believe in.
As stated above the censorship of films is governed by the Cinematograph Act,1952, the Cinematograph (Certification) Rules promulgated in 1983 and the guidelines issued on December 6, 1991. The guidelines are issued under Section 5(B) of the Act[4]. Section 5(B) of this act stated the conditions about censoring:
“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 States, 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 offence.”
The Information Technology Rules issued in 2011 also defined what will come under the ambit of ‘objectionable content’ related to movies. The Supreme Court of India in a judgement of 1989[5] stated the reasons on why should the contents of film must be regulated:
“Film censorship becomes necessary because a film motivates thought and action and assures a high degree of attention and retention as compared to the printed word. The combination of act and speech, sight and sound in semi darkness of the theatre with elimination of all distracting ideas will have a strong impact on the minds of the viewers and can affect emotions. Therefore, it has as much potential for evil as it has for good and has an equal potential to instil or cultivate violent or bad behaviour. It cannot be equated with other modes of communication. Censorship by prior restraint is, therefore, not only desirable but also necessary.”
Briefly speaking, the content of cinemas and television are regulated because of the heavy impact it has on the people of India. Cinema have the potential to influence human behaviours and alter their nature. As much as it is essential that people watch good cinema, it is also essential that the creators’ right to freedom of speech and expression is not violated. So, it becomes important to know where to draw a line so that the censorship does not violates the creators’ rights, but also the objectionable content can be identified.
DOES CENSORSHIP VIOLATES THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION?
This is a frequently debated topic with endless arguments from both the sides. Right to freedom is one of the fundamental rights granted by our constitution. Every citizen has the right to freedom of speech and expression. By this right, a movie producer and director can show any story that they want. In many cases it can be argued that censoring some content is a direct attack on the creator’s fundamental rights. The choice to display the concept as they want is being snatched away from them to protect the sentiments of some section of people. How to protect the rights of movie creators and emotions of people at same time is a difficult question to answer.
The importance of fundamental rights has been emphasised by Supreme Court over years through various judgements. The Article 19(1)(a) of Indian Constitution guarantees the freedom to make movies on any topic the producers want to show through right to freedom of speech and expression. Also, public morality, values and customs are very important to society. So, challenging these values is considered immoral, and what is immoral cannot be protected under constitution. That is why fundamental rights are not absolute rights. Right to freedom of speech and expression have some restrictions to protect public morality and decency through Article 19(2) of Indian Constitution. This presents a dilemma.
According to constitution, you have the right to make a movie, write a book, or give opinions about anything. But, at the same time it is your constitutional duty that you should not harm the morals, values and sentiment of people to create disharmony among them. This is the biggest argument in support of censorship. But there are no defined criteria on how to judge what is reasonable restriction on this right. The certification guidelines are vague in itself which can often lead to biasness in the process. Without having definite guidelines, the process of censoring movies cannot be said to hold credibility.
It depends on government and CBFC to decide what content can be censored or not. When a producer is not happy with CBFC’s decision they can apply to the Revising Committee. If they are still not satisfied the matter is taken up to an Independent Appellate Tribunal. Further disputes can be challenged in the Court of law. Many times, a movie was stopped from release and asked to make some changes in it by the Censor Board. Then these decisions were overturned by court. There are many such movies throughout the history of Indian Cinema.[6]
The popular example is of the movie Udta Punjab directed by Anurag Kashyap. This movie was asked to make several cuts by CBFC. The makers protested this move and went to Supreme Court. The court overturned the decision of Censor Board and the movie was released with one minor cut. In earlier years, movies that showed stories related to homosexuality and other topics that our society was too conservative to discuss were stopped from release. Some movies were banned as it was believed they may incite violence due to the sensitive topics of religion and caste they dealt with.
In a free and democratic country like India, censorship goes against the Article 19(1)(a) of the Indian Constitution. Only if a minor group of people does not agree with what is being shown, it must not be censored or banned. The content may and would still be favoured by a larger group of society and you cannot take away their right to enjoy a movie because some people did not agree with the concept. If someone makes a movie then it need not to be liked by every group of society. Some will agree with the concept and some will not, you cannot ban or censor it. In a republic like India, it indeed harms the democratic values of nation.
RECENT CONTROVERSIES RELATED TO OTT PLATFORMS
The debate has grown in recent years about regulating the digital content. The OTT platforms have gained more viewers because of the diverse content it presents to its audience. This have led to increase in more shows and movies being made and released on these platforms. The content on OTT platforms is released without any censorship or restrictions from any state regulating bodies. It is regulated by the platform on which it is released in many cases. They decide what is needed to be shown or not. However, some shows and movies have been subject to big controversies.
Series like ‘Tandav’ and ‘Paatal Lok’ have been alleged to hurt the religious and communal sentiments of people. ‘Mirzapur’ came into highlight when makers were sued to allegedly defaming the name of the city Mirzapur. There are many more examples on this matter and all of them have common reasons, i.e., not conforming with religious and communal ethics, showing extreme violence and mature content. The CBFC has been censoring these contents for years before it can be released in theatres. OTT platforms does not have such regulating body.
People have filed lawsuits against their makers and have asked government to ban such shows and impose restrictions. They are asking for censorship on the digital content also. They feel that the makers of these shows have misused their right to freedom of speech and expression. The Central Government filed petition to transfer all these pending matters to Supreme Court.[7] Being a matter of legislation, court have asked the government to take the necessary steps in the light of these matters. The Ministry of Information and Broadcasting have announced that it will issue new guidelines related to OTT platforms.
THE EFFECTS OF NEW OTT GUIDELINES
The biggest advantage of OTT platforms is that the producers can present the content as they wish without the interference of state in it. If they want to show topics that are not openly talked about in Indian society, they can show it. If they want to show violence and sexual scenes without censorship, they can show it. However, they issue a warning or disclaimer in beginning of the movie or show to describe what type of audience is cleared to watch it. If the new guidelines will be similar to the guidelines of CBFC, then no significant difference will remain between the content of theatres and OTT platforms.
The state will be able to regulate and manipulate all of the contents before their release. The viewers would not be able to experience it in the way the makers intended them to. This will not only prove harmful to the art of film making, but also to the democratic values of our nation. If several cuts to a film is made, then it will lose its essence and will disrupt the flow of storytelling. What good is a movie when it cannot be shown for what it is. A censored movie is as good as banned. This will discourage many movies and show makers. As a cinema creator, you need creative freedom to present a story to your viewers and let them be the judge.
With state interfering, the viewers will be deprived of their choice to watch the movie as it was meant to be watched. Every movie or a show has its target audience and it may not go well with other section of viewers, more likely in a diverse country like India. Censoring them will not do any better. Cinema must be enjoyed not manipulated. Storytelling is an important part of our society even if it showcases flawed characters and their arcs in not so conventional way. If restrictions would be imposed on digital platforms then it can negatively affect the quality and quantity of their content. State cannot restrict art as it is the most ancient and significant medium of expression.
HOW TO TACKLE THESE CONTROVERSIES?
Giving creative freedom does not mean that absolute freedom must be given to creators because still some topics are too sensitive to be exploited in India. Spreading hate must not be tolerated and if any content does that then the makers must be held accountable. But other topics that these shows explore must not be censored. Topics like sexuality, poverty, class indifference and religion must not be censored. They must be enjoyed by their target audience and if some people do not agree with them then they have the right to express their opinions regarding it, but not to spread hate.
As opposed to the conventional practice of censoring a movie before its release, only certifying the content must be the priority of state in relation to OTT platforms. Not only OTT platforms, but this practice must be incorporated by CBFC also in releasing the movies in theatres. This is the kind of policy that United States of America follows. Pre-release censorship must be stopped. State’s role must be limited to certify the movies before its releases.
The Indian audiences have progressed and matured a lot in the age of Internet. With increase in education and literacy in India, we have to be assured that common people will not get offend easily watching movies. The topics that were considered taboo in past are now talked about. So, presenting movies about them is not only maker’s choice but also the need of our society. People have to welcome new ideas that are different from what they believe in. Banning something you don’t believe in is undemocratic.
Those who does not agree with a particular content have always the choice of not watching it. But if you demand to ban it, then you are taking away the choice of those people who would want to watch it. If digital platforms release some objectionable content then people can take the matter to court and register their complain. In the cases where nudity and violence are showcased, these platforms have always issued a warning in beginning that these contents strictly belong to mature audiences. Then the issue of censoring or banning something due to this reason is completely unreasonable. Let people watch movies and shows without any restrictions.
A grievance hearing and dispute redressal institute must be formed by state which will take on the complains of viewers. That is the most efficient way out of this dilemma. If we are a democratic nation truly, then censorship must not be answer to every controversy that arises. You cannot satisfy every person. Not all people can agree on a same concept. If all of the people agree to one thing, then it is not a democracy. The essence of democracy is dissent and diverse opinions and respecting those who present them. Censorship will only hurt this essence of our democratic nation.
CONCLUSION
As mentioned above, it is clear that why censorship was needed in a nation like India during the initial years of cinema. But the fact cannot be ignored that this somehow clashed with the fundamental rights of a producer. Our nation has come a long way since then. India is a free and democratic republic where everyone is entitled to express their opinions. One may not agree with it but that does not take away the right of a person to express their thoughts. The guidelines on OTT platforms must not go against our nation’s democratic values. If someone does not agree with what is shown that does not mean they will stop other people to watch it. Nor can they spread hate about those who make these content.
People must look up to the quote by famous French poet Voltaire on freedom of speech and expression:
“I may not agree with what you have to say, but I will defend to death your right to say it.”
This quote sums up beautifully what a democratic nation and its subjects must aspire to be. Even if some people do not agree with what story the creators are presenting, you cannot take away their right to present the story in the way they want to. A viewer must decide on what to watch and what to ignore according to their likes and dislikes.
REFERENCES
[1] Rahul Parihar, Student at Maharashtra National Law University, Nagpur (Maharashtra).
[2] The Editors of Encyclopaedia, ‘Central Board of Film Certification’ (Britannica, 2 December 2014) <https://www.britannica.com/topic/Central-Board-of-Film-Certification> accessed 2 March 2021
[3] <https://www.cbfcindia.gov.in/main/certification.html> accessed 3 March 2021
[4] The Cinematograph Act 1952
[5] S Rangarajan Etc v P Jagjivan Ram 1989 SCC (2) 574
[6] Dipti Nagpaul, ‘Simply Put: How Does the Censor Board Work; Why is it Controversial?’ (The Indian Express, 7 December 2015) <https://indianexpress.com/article/explained/simply-put-how-does-the-censor-board-work-why-is-it-controversial/> accessed 3 March 2021
[7] Amit Raja Naik, ‘As OTT Platforms Formalise Self-Regulation Code, India Brings Censorship One Step Closer’ (Inc42, 11 February 2021) <https://inc42.com/buzz/india-takes-multiple-ott-cases-to-sc-are-censorship-rules-coming-soon/> accessed 3 March 2021