In a recent development, the Indian government through legislation has scrapped the Film Certification Appellate Tribunal (FCAT) with immediate effect leading to rising fear among the film fraternity over increased censorship in coming times. Similarly, the New IT Rules, 2021 also gave rise to fear among media of content censorship. This has brought back the focus on the censorship issue in India. Censorship in media is not a new concept in India. Since the British Rule, there have been issues regarding press freedom. News and broadcasting media have been under watch on the grounds of several laws and regulations. There has always been a tussle between those who are in power and the media on several issues. Censorship in the media has been counterproductive on various grounds and has constitutional limitations as well. Therefore, there is a need to look into the various aspects of censorship and how it works in India.
Censorship – Meaning
Censorship refers to regulation and suppression of speech and writing perceived to be detrimental to the public good. It includes the review of media content that can be deemed pornographic, politically offensive, or a security threat. It also includes official prohibition or restriction of any type of expression believed to threaten the political, social, or moral order. It can be imposed by a government authority, sometimes by a religious authority and occasionally by private organizations.
Causes of censorship
- Political reasons – Many times governments do not allow the publication of certain kinds of information on the grounds of being critical of it or some political party in the ruling.
- Social reasons – The disclosure of some kinds of information may create social disharmony due to which they are held back or censored.
- Moral reasons – Any content that is considered to be violating the moral code of conduct in society is censored. This may include pornographic content, content promoting racial and gender inequality or discrimination and others.
- Religious reasons – Any type of information that may hurt the religious feelings of some community in society is often held back. Countries that have particular state religion also tend to restrict such speech and expression in any form that may be blasphemous.
- Security reasons – Information that may harm the security of a state is often held back from publication. Such disclosure may risk the security of a particular region against foreign invasion and terrorist threats.
Effects of censorship
- Pros – Although censorship is viewed negatively, it is not evil all the time; it has some positive aspects as well. Censorship prevents disharmony in society by prevention of disclosure of objectionable content that can lead to communal discord, preserves the security of the state, maintains morality in the society, prohibits the spread of false beliefs or rumours, curbs access to harmful activities by preventing their public display and others.
- Cons – Censorship also leads to excess restriction on freedom of speech and expression. Most of the time it is used to silence those who are critical of those who are in power. Thus, it may harm healthy debate and criticism in society. In this way, it gives prominence and authority to a single group of people. It often becomes an instrument of harassment of those seeking free speech.
Censorship in India
During the British Rule
- As soon as the British East India Company(EIC) set up its dominions in India, the printing press and typesets arrived in India but modern journalism was born in India mostly as a result of British suppression of Indians.
- The EIC’s administrators and shareholders were constantly anxious about the potential of the new medium of the press to disrupt their colonial rule. The East India Company actively tried to suppress this new medium.
- From 1780 onwards, the Company carefully monitored each piece of newsprint that was being circulated within its territories.
- In 1799, the Censorship of Press Act was enacted by Lord Wellesley, anticipating the French invasion of India. As per this act, every newspaper should print the names of the printer, editor and proprietor. Before printing any material it should be submitted to the secretary of Censorship.
- In 1823, the acting governor-general, John Adams enacted the Licensing Regulations to monitor press freedom in India. The regulations were supposed to act against Indian language newspapers or those edited by Indians. As per the regulations, starting or using a press without a licence was a penal offence.
- In 1835, governor-general Metcalfe repealed the 1823 ordinance and enacted the new Press Act (1835). The Act required a printer/publisher to give a precise account of premises of a publication and cease functioning if required by a similar declaration. Metcalfe earned the epithet of “liberator of the press” due to this decision.
- In 1857, the Licensing Act was introduced given the emergency situation during the revolt. This Act imposed licensing restrictions in addition to the already existing registration procedure laid down by Metcalfe Act and the Government reserved the right to stop publication and circulation of any book, newspaper or printed matter.
- In 1867, the Registration Act was introduced. It replaced Metcalfe’s Act of 1835 and was of a regulatory, not restrictive, nature. As per the Act, (i) every book/newspaper was required to print the name of the printer and the publisher and the place of the publication; and (ii) a copy was to be submitted to the local government within one month of the publication of a book.
- A bitter legacy of the 1857 revolt was the racial bitterness between the ruler and the ruled. After 1858, the European press always rallied behind the Government in political controversies while the vernacular press was critical of the Government.
- Lord Lytton’s administration especially regarding its inhuman treatment to victims of the famine of 1876-77 was widely criticised by Indian newspapers in reaction to which the Vernacular Press Act, 1878 was enacted. It was designed to ‘better control’ the vernacular press and effectively punish and repress seditious writing. The Act forced all Indian publications to apply for a government license while also making sure that nothing was written against all the British government, nor was the government in any way threatened. The Press was unaffected by the “Gagging Act”, making its way across news dissemination. This pressed the government to develop far more rigorous policies. No English-language media outlets were subject to this Act.
- With the rise of the National Movement, the Indian Press got a powerful drive. Eventually, the government was suspicious of the press, so enacted many laws to regulate it and curb political issues.
- Four new laws were introduced around 1908-1901, following the creation of the Indian National Congress, which includes the Newspapers (Incitement to Offences) Act of 1908, the Press Act of 1910, the Prevention of Seditious Meetings Act of 1911, and the Criminal Law Amendment Act of 1908.
- Film censorship in India began in 1918. In 1917, a bill was introduced in the imperial legislative council which noted that there was a rapid growth in the popularity of cinematograph and an increasing number of such exhibitions in India. The Bill recommended the creation of a law that would ensure both safety and the “protection of the public from indecent or otherwise objectionable representations”. As a result, the Cinematograph Act of 1918 came into existence.
- In 1931, the Press Emergency Act was enacted. It was enacted in reaction to Gandhi’s call to mobilise people for the Salt Satyagraha.
- The government during the Second World War to suppress popular Indian opinion introduced strict censorship while the Indian Press (Emergency Powers) Act, 1931 was already in force. Under the Defence of India Rules, repression was imposed and amendments made in the Press Emergency Act and Official Secrets Act. It monitored and manipulated foreign news which was coming in, and intentionally generated, systematically propaganda-rooted news.
- There were regional censors in India to monitor cinematic content.
- In the 1940s, the policing of Indian cinema grew more stringent. Out of 1,774 films seen by the Bombay censors in 1943, 25 required modification before they could be released; that number went up to 464 (out of 3,099) by 1948.
- The makers of the Constitution knew the value of freedom of speech and expression and thus Article 19(1) was introduced that guaranteed freedom of speech and expression. However, this right came with certain reasonable restrictions.
- The Cinematograph Act of 1918 was abolished and it was later replaced with a similar law the Cinematograph Act of 1952. Over the next few years, a Central Board of Film Censors (CBFC, renamed as Central Board of Film Certification in 1983) was set up, regional boards were abolished. The Central Board of Film Certification (CBFC) comes under the Ministry of Information and Broadcasting purview. It assigns various certifications such as Universal, Adults, and Parental Guidance to India’s films before releasing.
- In the laws governing the freedom of speech and expression in independent India, the sedition law, Section 124A of the Indian Penal Code (IPC) stands at the fore. The law is in working since British Raj. It provides for a maximum penalty of life in prison. It forbids any signs, visual representations, or phrases, whether written or spoken, that may “bring or attempt to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law”.
- Similarly, criminal defamation, under the Indian Penal Code, 1860, specified in Section 499 is another law governing freedom of expression in India. It forbids any person from defaming any other person thus ensuring the wise use of freedom of expression guaranteed in the Indian Constitution.
- During the emergency period, there was a huge blow of censorship on the Indian media. In 1978, the Press Council of India Act came into being. The Press Council of India was established under its purview. It sought to preserve the press’s freedom and maintain and improve the standards of newspapers and news agencies in India. The PCI has the power to receive complaints of violation of journalistic ethics or misconduct by an editor or journalist. The decisions of the PCI are final and cannot be appealed before a court of law.
- While the Cinematograph Act exists for the regulation of films, the Cinematograph Rules, 1983, govern the public exhibition of movies, and the Programme and Advertising Code prescribed under the Cable Television Network Rules,1994, regulates the broadcast of films on television.
- The operation of television networks, television broadcasters and related matters are governed by the Cable Television Networks (Regulation) Act, 1995 and Cable Television Networks Rules, 1994 (the “Cable Television Laws”). These among other things, restrict transmission through a cable service, of any program that is not in conformity with the program code (the “Program Code”), and of any advertisement that is not in conformity with the advertising code (the “Advertising Code”) set out in the Cable Television Networks Rules, 1994.
- The Information Technology Act, 2000(“IT Act”) deals with censorship of online content. Sections 67A, 67B and 67C of the Act provide for penalty and imprisonment for publishing or transmitting obscene material, sexually explicit material and also material depicting children in sexually explicit acts, in electronic form. Under Section 69A of the IT Act, the Central Government is empowered to issue directions to block public access to any information.
- The Information Technology (Intermediary Guidelines) Rules, 2011 (the “Intermediary Guidelines”) notified by the Department of Electronics and Information Technology, provide a due diligence framework to be observed by intermediaries in respect of the information being hosted or published on any computer resource of the intermediary.
- To monitor the content on the OTT (Over the Top) platforms, the Ministry of Information and Broadcasting (MIB) recently notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 (Rules). The Rules seek to introduce a code of ethics to set out guidelines for classification of content based on viewer’s age, themes, content, tone and impact, and target audience; and requires OTT platforms to give due consideration to sovereignty, security, friendly relations of India, etc. It also requires the setting up of a robust three-tier grievance redressal mechanism.
Important cases and judgements
- The Supreme Court of India in the K.A. Abbas vs the Union of India case upheld restrictions on public exhibition under Cinematograph Act, 1952, and rejected a petition that challenged the Act’s powers of censorship. The Court ruled that prior censorship fell within the reasonable restrictions permitted on free expression and that the Act was sufficiently clear to avoid the arbitrary exercise of the powers therein.
- Constitutionality of censorship was also held in S. Rangarajan v. P. Jagjivan Ram. The Court opined that cinema caters for a mass audience who are generally not selective about what they watch. It cannot be allowed to function in a free market place just as does the newspapers and magazines. Censorship by prior restraint is, therefore, not only desirable but also necessary.
- The Supreme Court through various judgments also upheld the dignity of the press and freedom it enjoys by nullifying the attempts to put a curb on it. These cases include the Brij Bhusan case, Sakal Papers case, Romesh Thapper case, the Indian Express Newspaper case, the Bennett and Coleman case and others.
Censorship and international laws
- Article 19 of the Universal Declaration of Human Rights(UDHR) states that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
- Article 19 of the International Covenant on Civil and Political Rights(ICCPR) similarly states that everyone has the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or print, in the form of art, or through any other media of his choice. However, it carries with it certain duties and responsibilities.
- Along with these, the Special Rapporteur’s Reports on Free Speech and other records of human rights tie to India which are related to free speech and expression.
- Amendment of criminal laws in India in compliance with international principles to preserve freedom of speech and expression.
- Proper discussion with all the stakeholders before introducing and modifying any particular law on censorship.
- Creation of rules and procedures which are proactive and non-punitive to address hate speech etc. The process may involve raising public awareness, combating indecent misinformation and improving protection to protect a community at risk.
- Artistic expression and creative freedom should not unduly be curbed and certification should be responsive to social change.
Censorship is a coin with two faces. It has positive as well as negative sides. Given the ever-changing nature of society, everybody should be inclusive enough to accept diverse and contrasting opinions. The very essence of freedom of speech and expression needs to be kept alive keeping in mind the reasonable restrictions at the same time. Proper discussion and persuasion can be the right approach in building a healthy balance between freedom of expression and what needs to be held back.
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