Given that, fortunately or unfortunately, Vishwaroopam seems to be occupying our mind-space, I thought it would help to know what the law posits on the issue, instead of shooting arrows in the dark about the conclusive nature of certification issued by the Censor Board.

Following are the words of the inimitable Justice Shri V.R.Krishna Iyer in Raj Kapoor & Ors. v. State and Ors. (1979) where the Learned Supreme Court Judge recognized the commercial realities of a film-maker.

A unique pro bono publico prosecution was launched by a private complainant, claiming (before us) to be the President of a Youth Organisation devoted to defending Indian cultural standards, inter alia, against the unceasing waves of celluloid anti-culture, arraigning, together with the theatre owner, the producer, actors and photographer of a sensationally captioned and loudly publicised film by name “Satyam, Sivam, Sundaram” under Ss. 282, 283 and 34 Indian Penal Code (hereinafter referred to as the Penal Code) for alleged punitive prurience, moral depravity and shocking erosion of public decency.

Were there serious merit in the charge, a criminal prosecution would serve to sanitize the polluted celluloid, hand cuff cinemas running erotic and amok, and become a crucial super-censorship of salacious films. Why not? Were it otherwise, the precarious film producer had to face a new menace to public exhibition easily set in motion through the process of the court by any busy body willing to blackmail of wanting to harass, prodded by rival producers.

Especially when a special statute (the Cinematograph Act) has set special standards for films for public consumption and created a special board to screen and censor from the angle of public morals and the like, with its verdicts being subject to higher review, inexpert criminal courts must be cautious to ‘rush in’ and, indeed, must ‘fear to tread’, lest the judicial process should become a public footpath for any high way man wearing a moral mask holding up a film maker who has travelled the expensive and perilous journey to exhibition of his ‘certificated’ picture.”

In the very same judgment, the Judge also went on to observe the following in relation to the conclusive nature or otherwise of the certificate issued by the Censor Board under the Cinematograph Act, 1952:

I am satisfied that the Film Censor Board, acting under s. 5A, is specially entrusted to screen off the silver screen pictures which offensively invade or deprave public morals through over-sex. There is no doubt-and counsel on both sides agree-that a certificate by a high-powered Board of Censors with specialised composition and statutory mandate is not a piece of utter inconsequence. It is relevant material, important in its impact, though not infallible in its verdict. But the Court is not barred from trying the case because the certificate is not conclusive. Nevertheless, the magistrate shall not brush aside what another tribunal has for similar purpose, found. May be, even a rebuttable presumption arises in favour of the statutory certificate but could be negatived by positive evidence.

Therefore, a certificate issued by the Censor Board is not the last word on the issue. That said, what is to be noted is that the Censor Board is obligated to have due regard to the following principles in certifying a film as spelt out in Section 5B of the Cinematograph Act:

5B. Principles for guidance in certifying films.—(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 offence.

 (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.

 What this tells us is that, at least in theory, a censor certificate is issued to a film after it passes the litmus test of Section 5B, which is a fact that a Court re-evaluating the certification of the film must have regard to. Now, it could be presumed that Kamal’s “Vishwaroopam” too must have been duly scrutinized through the prism of Section 5B. But is the analysis under this provision an isolated one? No.

In evaluating a film under Section 5B, a balance must be struck between the fundamental right of expression of the film-maker and the “reasonable restrictions” imposed on such rights under the various categories enumerated in Section 5B. This would ultimately boil down to a factual analysis of the overall pitch and tone of the movie and specific scenes/sequences which must pass muster on the anvils of the balance test.

In Vishwaroopam’s case, it appears that the movie will need to steer clear of the categories of “public order”, “defamation” or “incitement to commission of any offence”.

Given that several movies on Islamic Fundamentalism/Terrorism/Jihad have been made in India, it beats logic to protest against Vishwaroopam which is a film based on acts of terror committed outside India, and is not remotely a representation of the psyche of Indian Muslims.

Our audiences have been treated to “Roja”, which is probably the earliest film to comment bluntly on Islamic terrorism in India with clear references to the ethnic cleansing of Kashmiri Pandits. In fact, the terrorist in “Roja” is shown as someone having a Coimbatore connection who speaks fluent Tamizh, which probably comes dangerously close to home…..and yet there were no block-headed protests against misrepresentation of Islam or Indian Muslims. If someone paid close attention to the movie, specifically the scene where Roja meets the terrorist Wasim Khan, she gives him a piece of her mind and asks him to leave India if he’s not happy here…and yet the only ones who took umbrage to the movie were actual terrorists, not the average Muslim.

Then what on earth is the fuss all about when it comes to Vishwaroopam?

What is appalling are the veiled threats issued against Kamal and his films in this Press Conference, and the pedestrian attacks. As stated in my last post, I do not approve of or agree with Kamal’s political views, some of which I truly find repulsive. But what is more important is that this boorish medieval mob cannot be allowed to tell the rest of us what we can or cannot watch at gun point. No matter what we think of Kamal or his movies, the mob does not get to dictate terms to the rest of us.

So, if not for Kamal or Vishwaroopam, in the spirit of free speech and expression, the mob must be resisted at all costs in every manner possible. This is not 1989, and we cannot lose sight of this fact in our grievances against Kamal’s ideology.

(Image Courtesy – FirstPost)

The following two tabs change content below.

J. Sai Deepak

Engineer-turned-Advocate, High Court of Delhi. Founder of the "blawg" "The Demanding Mistress" (http://thedemandingmistress.blogspot.in/).