The controversies surrounding the Indian Central Board of Film Certification's (CBFC) suggested cuts to one of the most highly anticipated films of the year, Udta Punjab, seem to be far from abatement. While on the one hand, the apparent politically motivated stand of the CBFC and its arbitrariness has made news, on the other hand the producer of the film has avowed to knock the courts' doors for justice for his film.
In this hullabaloo, it would serve us well to revisit the role of the CBFC in its function of certifying films for exhibition. As also to examine how Indian constitutional courts (the Supreme Court and High Courts) have come to the rescue of movie-makers and their creative license in depicting social ills and afflictions. 

The CBFC Film Certification Process

The CBFC has been constituted under the Cinematograph Act, 1952 and is governed by the Cinematograph Rules, 1983. In carrying out its function of certification of films, among others, the CBFC is governed by the Guidelines issued by the Central Government under the Cinematograph Act. The most relevant clauses of the Guidelines are:

A film is judged in its entirety from the point of view of its overall impact and is examined in the light of the period depicted in the film and the contemporary standards of the country and the people to whom the film relates, provided that the film does not deprave the morality of the audience. Guidelines are applied to the titles of the films also.

The Guidelines further provide that the objectives of film certification are:

(i) the medium of film remains responsible and sensitive to the values and standards of society; (ii) artistic expression and creative freedom are not unduly curbed; (iii) certification is responsive to social change; (iv) the medium of film provides clean and healthy entertainment; and (v) as far as possible, the film is of aesthetic value and cinematically of a good standard.

The Guidelines are therefore couched in subjective terms and are amenable to varied interpretations by the officials of the CBFC which are the decision-making authorities. Once a film is submitted for certification, it is referred to an Examining Committee which comprises of members of the Advisory Panel constituted under the Cinematograph Rules as well as an Examining Officer. The Examining Committee must have regard to the Guidelines and submit its recommendation for certification which is then accepted by the Chairman of the CBFC. The final certificate is issued with the movie certified as a whole or with removal of portions of the film.

This is the stage where the controversies around the Udta Punjab certification process has arisen. In short, the producers allege that the cuts suggested by the CBFC will denude the nature of the film and the message it seeks to convey.

New reports suggest that the producer of the film has already approached the Bombay High Court regarding the cuts ordered by the CBFC. The Bombay High Court has sought for an explanation from the CBFC as to the reasons behind the cuts suggested and the proceedings in Court are under way. In these circumstances, it would be pertinent to see how the courts have decided such matters in the past.

Courts as custodians of creativity

The constitutional courts in India i.e. the Supreme Court and the High Courts have been instrumental in safeguarding the creative license movie-makers enjoy under the Constitution of India. They have aimed to achieve a balance between the objectives motivating the actions of the CBFC as against the larger public good. So here are a few cases where Indian Courts played an important role in dousing the public outcry over the apparent arbitrariness in the film certification process:

1. The Delhi High Court in Srishti School of Art, Design & Technology v. Chairperson, CBFC, while dealing with certain films about the legacy and teachings of the 15th century poet-philosopher Kabir. While three films of the series were granted certification with minor changes, certain cuts and excisions were ordered to be made to the fourth film "Had Anhad". After examining the film and the excisions ordered to be made threadbare, the Delhi High Court held: 

The film lends democratic space to the “speaking subject" and the “citizen viewer" to engage in a civilized debate on issues that are perceived to be contentious. It invites introspection into and the cleansing of prejudices from the inner recesses of a bigoted mind with the use of Kabir's words and thoughts. It demonstrates how the created barriers of regions, borders, languages, religions, nationalities and nations melt away in Kabir's universal message of love and compassion. A viewer who stays to see the film till its end is unlikely to be left feeling hateful or vengeful towards any religion or community. The viewer might be impelled to contemplate on the futility of bigotry and violence. Viewed in this light, and in light of the settled constitutional law of the freedom of speech and expression, none of the excisions as directed by the CBFC, three of which have been upheld by the FCAT, are legally sustainable.

The Court therefore advocated an approach where a film should not be unncecessarily ordered to be excised, and that mere portrayal of a social vice is not impermissible; and that a film must be viewed as a whole and its words and visuals must be viewed in the context of the whole film. The overall message of the film is the only relevant consideration.

2. Similar principles have been laid down in several other judgments of the Bombay High Court in cases such as - F.A. Picture International v. CBFC, Krishna Mishra v. Union of India, etc. 

3. The Supreme Court in one of the earliest cases on pre-censorship of movies/documentaries by the CBFC - KA Abbas v. Union of India - has also observed that “censorship of films including prior restraint is justified under our Constitution” and proceeded to explain: 

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. But direction is necessary to him so that he does not sweep within the terms of the vast areas of thought, speech and expression of artistic quality and social purpose and interest. Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationships as banned into and forever from human thought and must give scope for talent to put them before society. The 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 or 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, in much the same way, as it is wrongly said, a Frenchman sees a woman's legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth.

Despite declaration of such stringent standards by Indian Courts, the CBFC continues to be driven by narrow political and moralistic tendencies. It is in situations such as these that a citizen might wonder about the chasm that has grown between the government and the governed and the growing distance between the constitutional values such as freedom of speech that we hold so close to our heart. A filmmaker who has the means to approach courts may eventually win the legal battle against the vile forces that seek to curb our liberties, but who will undo the damage such curbing has caused to our social fabric?