Human Rights Supreme Court of India

“I know it, when I see it” – The limits of the law in finding illegality in obscenity

AparGupta_freedomofspeechThe recent legal prosecution of AIB, a stand-up comics collective, has thrown open the debate on obscenity standards. In its show, AIB used cuss words and made express sexual innuendos. It was plainly visible that they were challenging, even if unwittingly, not only the conventional social mores but also the thresholds of obscenity law. Many see their prosecution as unfair and unequitable and evidence of greater intolerance in Indian society. Many have also questioned the law that formed the basis for the prosecution. It has been described as vague, indeterminate, and providing a ground for complaint to the least tolerant.

This is properly a debate on the legal standards used to determine obscenity. As opposed to a debate on the necessity of the offence of obscenity itself. This article focusses on examining arguments for greater certainty in the legal tests for determining obscenity and seeks to build towards a more ambitious proposal, that legal tests and criteria cannot define obscenity to any reasonable certainty. Its moral desirability, even in the face of such subjectivity, is of course a choice left for the legislature.

The Hicklin test

The legal standards governing obscenity arise from the case of Ranjit Udeshi v. State of Maharashtra where the Supreme Court of India interpreted Section 292 of the Indian Penal Code, 1860. Though Section 292 only criminalises printed materials, its definition of obscenity is utilised in other criminal provisions such as Section 294, which criminalises obscene speech and songs. In Ranjit Udeshi, a five-judge bench of the Supreme Court of India adopted the Hicklin Test laid down in the case of Regina v. Hicklin by Justice Cockburn.

D.H. Lawrence's classic novel, the subject of controversy in Ranjit Udeshi's case.

D.H. Lawrence’s classic novel, the subject of controversy in Ranjit Udeshi’s case.

The test relies on gauging the content with respect to its tendency to deprave or corrupt. This depravity is reasoned to result from the content evoking or opening a person’s mind to any eroticism or sexual arousal. Finally, the test is not gauged from the perspective of an adult, but those minds which are open to such “immoral” influences. In a sense, its objective remains the infantilising of an adult mind. Our Supreme Court, while adopting this test, made slight modifications indicating that, “community standards” have an important bearing in adjudicating the legality of content as well. The case acknowledged that such obscenity can be part of a longer movie or song, but it had to, “remain in the shadows”. It is not without reason that old Bollywood movies contain visual innuendos, of a shaking bush or a rocking bed to represent love making.

The test by itself, on its very face, seems vague and incomprehensible and this seemed to be within the contemplation of the judges as well. They wrote in the decision itself that the “court must, therefore, apply itself to consider each work at a time.” In a sense, this revolts against the necessity of giving adequate notice to authors and artists.

This subjectivity became visible when the Supreme Court, in the case of C.K. Kakodar v. State of Maharashtra, applied the Hicklin Test. To gauge the obscenity in a story, it examined the theme of the story, the main protagonists, and the “artistic merit” in it. Explaining its approach, the Court stated that its duty was to “ascertain whether the book or story or any passage or passages offend the provisions of S. 292”. This implicitly recognises that it requires highly trained judicial minds which seek to balance competing interests to gauge whether a work is not obscene, and has, “artistic merit”. Again disposing of the petition and holding in favour of the author, the Court made reference to the contemporary morals of Indian society, which it also noticed, were “fast changing”. A convenient result therefore, backed by unfortunate reasoning.

Limiting the Hicklin test

It is not as if the criticisms of such an ad-hoc and content-by-content approach were not felt by the Court. In the same year as the Kakodar case, the Supreme Court made express reference to Udeshi’s case, when called to adjudge the legality of the pre-censorship of movies. The petitioners in K.A. Abbas v. Union of India argued that the mandatory certification necessary to any prior exhibition by the Cinematograph Act was unconstitutional as a prior-restraint. The Court, while holding the Act constitutional, laid down some guidelines that in its view, afforded reasonable safeguards. In its penultimate paragraph however, it contained some criticism that indicated a small but significant realisation that the law by and large contained vague obscenity standards. Its prescription revolted against any liberal conception of censorship, stating that Parliament should legislate more, as if to clinically separate the obscene from the moral. As we go along, we will discover the limits of law and of judicial eloquence to regulate the arts.


After an interregnum of about five years, the Supreme Court, in Samaresh Bose v. Amal Mitra, again faced its precedent and marked a significant departure from it by seeking to limit the applicability of the Hicklin test. Rather, it sought to make community standards the overreaching or controlling criteria to gauge obscenity. The Court in its inquiry, first focussed on certain prongs devised under a community standards grouping and only after this, did it proceeded to a pure analysis of obscenity under Section 292 and the Hicklin test. This was achieved by the Court stating that in order to determine the offence of obscenity, the judge should first place themselves in the position of the author to gauge the literary and artistic merit and thereafter place themselves in the position of a reader of every age group, not only children and those open to influences. Only after this should the inquiry on the Hicklin test proceed. This test or the tiered approach to gauge illegality appears persuasive, however again, in practice, requires subjective, content-by-content determinations.

bandit-queen-movie-poster-1994Even though the test in Samaresh Bose has not been followed, courts have evenly sought to apply its variations to gauge the artistic merit in a work while determining obscenity. In Bobby Art International, Etc v. Om Pal Singh Hoon, the Supreme Court, while adjudicating the appropriateness of the movie Bandit Queen being given a Central Board of Film Certification (“Censor Board”) certificate with an “A” rating, exhaustively analysed the theme of the movie. The Court held that the objections of the Censor Board that the movie depicted social evils could not be sustained as it was unavoidable in a movie which showed the consequent harm caused by it. Further, in Director General, Directorate v. Anand Patwardhan, the Supreme Court directed Doordarshan to screen the respondent’s documentary Father, son and Holy War and in doing so, sought to expressly apply “community standards” while not expressly overruling the Hicklin test.

The resultant confusion in standards which may be applied to obscenity is evident from the Supreme Court’s reasoning in Ajay Goswami v. Union of India. These tests, which are chronologically listed, are prefaced in the judgement as “broad principles”. Not only are these principles broad, but their girth seems to have increased with time. Though the judgement in terms of legal articulation correctly notices past precedent, it also makes it evident that India, for a long period of time, had several legal standards to gauge obscenity, permitting subjectivity and preventing adequate notice of illegality to artists and authors.

Express adoption of community standards

This position in law seems to have undergone a dramatic change last year, with the Supreme Court ruling in Aveek Sarkar v. State of West Bengal. The ruling expressly discards the Hicklin test, stating that it is not good law. In its place, it adopts the more liberally oriented “community standards” test. However, the manner in which the Court applies the community standards test itself gives cause for concern. If one reads the judgement, the Court again examines the content in question and the social merit in the publication. Again, the result may be liberal, but the reasoning itself may only be a modest improvement on the Hicklin Test.

This is not to say that the express adoption of the community standards test in the Aveek Sarkar case is not cause for hope, however its promise is limited. While it does signify an express statement from the Supreme Court recognising the need for the greater liberty of artists and authors, it maintains the necessity for “artistic merit” or social need. The application of the community standards test can also be criticised on several other grounds but the major criticism is that it again permits subjectivity and a value-driven assessment by our higher judiciary.

Again, it needs to be emphasised that the High Court of Delhi has in two recent cases, by the application of Aveek Sarkar, refused to prohibit the exhibition of movies with Censor Board certificates. In both instances however, the Court gave substantial credence to the legality of the movies on the basis of the certificate for exhibition issued by the Censor Board. In the first case, Nandini Tewari and Another v. Union of India, the Court was asked to prohibit the exhibition of the movie Finding Fanny due to the name of the movie itself. The Court examined the term “fanny” as well as the term as it appeared in the dialogues of other movies in the past. It not only applied the Aveek Sarkar case but even earlier precedent to implicitly form a “community interest” and an “anticipated danger” test.

In the second case, Ajay Gautam v. Union of India, the High Court examined the contents of the movie PK, which the petitioner complained, mocked the Hindu religion and hence should be prohibited from exhibition. The Court again substantively appreciated the movie in question, heavily relying on the prior existence of a Censor Board certificate, and the nature of the movie, that is, a parody. Though the case is not per se concerned with obscenity, precedent on obscenity is bundled with larger free speech jurisprudence including the, “clear and present danger” test.

The limits of law

A review of legal precedent suggests that both the Hicklin test and the community standards test are not only fallible in some isolated instances but by their very nature permit subjectivity and value-based assessments. It has been my firm belief that any moral harm that is supposed to originate from movies, songs, paintings, or any other form of creative art is illusory. This moral harm is at the core of any justification for the offence of obscenity. Even if such an outlook is not shared by others, it is evident that obscenity to a large degree is a vague concept which will rely on a case-by-case determination, dependent on the facts of each case, in which a judicially trained mind (as opposed to an artistically inclined one) will examine the artistic merits and the potential illegality.

Though Indian case law to a large degree has drawn inspiration from the First Amendment precedent of the United States Supreme Court, it has failed to notice the dissent of Justice Brennan in Paris Adult Theatre I v. Slaton. Justice Brennan’s eloquence lays evident the limits of law, as it seeks to balance any purported moral harm with the liberty of artists. To end it is quoted below:

“Of course, the vagueness problem would be largely of our own creation if it stemmed primarily from our [p84] failure to reach a consensus on any one standard. But, after 16 years of experimentation and debate, I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and, on the other, the asserted state interest in regulating the dissemination of certain sexually oriented materials. Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as “prurient interest,” “patent offensiveness,” “serious literary value,” and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncrasies of the person defining them. Although we have assumed that obscenity does exist and that we “know it when [we] see it,” Jacobellis v. Ohio, supra, at 197 (STEWART, J., concurring), we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech.”

(Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.)

Human Rights

Invariably a tragedy – How Indian law encouraged risk-averse filmmaking and audience apathy

AparGupta_freedomofspeechThe first scene in the fifth act of William Shakespeare’s Hamlet: Prince of Denmark is perhaps the most unflattering prose that the bard wrote on the subject of lawyers. Before holding up a skull, Hamlet points to an exhumed grave and asks if the occupant was a lawyer. Proceeding to mock lawyers who do not appreciate the limits of law, Hamlet remarks that the only property rights accorded after burial are titles to coffins. This derision of the legal system was not included Vishal Bhardwaj’s film adaptation Haider, perhaps with good reason, given the recent legal troubles the film has run into.

Haider, which adapted the play to the political confines of Kashmir, was always going to be controversial. There did not seem reason however, to suggest that such controversy would involve the legal system. After all it had a valid censor board certificate, issued after complying with a demand for six cuts to be made to the original version. Since this legal compliance was completed beforehand, the notice issued by the Allahabad High Court to a petition seeking its ban and more recently, a criminal complaint filed with the Panaji Police may appear irregular. But there is a wider pattern and legal precedent that the law frightfully permits.

Process of mandatory pre-certification

Film in India is regulated under the Cinematograph Act, 1952 (“Cinematograph Act”). It establishes the Censor Board of Film Certification (“CBFC”) which certifies films for public exhibition as well as restricted viewing. This process is mandatory, and the exhibition of a movie without what is popularly referred to as a censor board certificate is an offence punishable on conviction with up to three years of imprisonment. Curiously, this legal obligation punishment are prescribed under the Copyright Act, 1957. Additional penalties are also provided in the Cinematograph Act. The High Court of Delhi in Dharmendar Kapoor v. CBFC, 2011 (46) PTC 1 (Del), has also clarified that all cinematographic works exhibited need to certified, even if they are sold only on DVDs for private viewing and are not exhibited in cinemas. In essence, every work featuring moving images, if exhibited even to a restricted audience, even if sold directly and viewed privately, requires mandatory certification.


The criteria for certification is inherently subjective and can lead to arbitrary determinations. The reasons for this are three fold. First, the substantive guidelines for film certification permit subjectivity. They allow allows censorship so that “human sensibilities are not offended by vulgarity, obscenity or depravity” and even of “dual meaning words as obviously cater to baser instincts”. Many more grounds under these certification rules are broadly phrased and do not contain any legal ingredients. Secondly, under Section 3 of the Cinematograph Act, the central government has the complete power to appoint the members of the CBFC, the body making such determinations, censoring movies, and granting exhibition certificates. While a defence that has often been put forward is that the CBFC’s determinations are independent, it is not demonstrated by precedent. Political themes that are inconvenient to the ruling dispensation of the day often meet a higher degree of scrutiny and censorship.

Farcical appeals

Finally, what is the recourse for a film maker unhappy with such a determination? What does one who does not wish to carry out the cuts as demanded by the CBFC do? Such a filmmaker may approach the Film Certification Appellate Tribunal (“FCAT”) which is headed by a retired judge. The FCAT, which appears a strong safeguard in statute, was instituted after the Supreme Court, in K.A. Abbas v. Union of India, (1971) 2 S.C.R. 446, held that mandatory pre-censorship was a valid restriction on the right to freedom of speech and expression under Article 19(1)(a) but then nudged the Union Government to establish an appellate tribunal. Practice has shown however, that the FCAT has been ineffective principally due to the delay and pendency in determining an appeal. Financers of movies are impatient to reap profits and prevent the movie from becoming ‘stale’. Given the capital costs and the commercial stakes involved, filmmakers often grudgingly accept the cuts rather than risk the pendency of an appeal. Also, the mere presence of a retired judge as the chairperson of the FCAT does not guarantee a more liberal reading of the guidelines.

There is ample evidence of both these trends in case law as well as in current events. A recent instance is of the case of Srishti School of Art, Design v. CBFC, W.P. (C) 6806 of 2010, where the High Court of Delhi set aside the order of the appellate tribunal holding, “none of the excisions as directed by the CBFC, three of which have been upheld by the FCAT, are legally sustainable”. In the more recent decision of Krishna Mishra v. CBFC, W.P. (C) 2006 of 2012, the High Court of Bombay found that the FCAT did not even provide any reasons for upholding the CBFC’s demand for cuts. The petitioners victory was pyrrhic because the matter was remanded back to the examining committee of the CBFC for determination. Such a delay would surely cripple a filmmaker financially. A reasonable person would rather make the cuts and release the movie. But then great artists are rarely known to be reasonable.

Kamal Hassan’s Vishwaroopam

Vishwaroopam_posterIn 2013, award winning filmmaker Kamal Hassan invested his personal savings and took loans to make the 100 crore film, Vishwaroopam. Shortly before its release, some minority organisations protested its release in the State of Tamil Nadu, which lead to a ban under Section 144 of Code of Criminal Procedure, 1973, citing possible law and order problems. The movie already had a censor board certificate and the Supreme Court had recently, in Prakash Jha v. Union of India, (2011) 8 SCC 372, stated that a state government cannot use law and order as an excuse to prevent the exhibition of a movie by, once the CBFC had certified it.

With the law firmly behind him, Mr. Hassan’s first instinct was to legally fight the ban. Even when the Madras High Court agreed to hear his petition, he effectively lost. Declining him any interim relief, the release of the movie was stayed till the next date of hearing. Finally, a single judge held in his favour, but even that decision was appealed by the state government and the ban was restored. Time was passing and Mr. Hassan was losing money. Things got worse and the ban was extended by other state governments. The movie could not be screened in Andhra Pradesh, Kerala, and Karnataka. It was time to be reasonable. Compromises were made and scissors met the film reel. Remember that at this point, Vishwaroopam had a valid censor board certificate. The additional cuts made to it are the very definition of state coercion. After its release, a wistful Hassan remarked, “I am the son of Socrates. Give me a cup of poison and I will sip it and still speak my freedom”. Far from a Greek philosopher, Hassan was playing the part of Hamlet’s trusted friend Horatio, who was prevented from consuming poison— condemned to suffer misfortune and to live to tell the tale.

The offended and their PILs and FIRs

Clearly, it is not easy to get a CBFC certificate, but even after it has been granted, state governments have at their disposal, a choice of statutory paraphernalia. It doesn’t even end there. Vile gadflies mock offence and approach courts and police stations. Let us first consider public interest litigations (“PILs”) aimed at preventing the screening of movies.

Ore Oru Gramathile was a 1987 Tamil film that was critical of caste-based reservations in educational institutions.
Ore Oru Gramathile was a 1987 Tamil film that was critical of caste-based reservations in educational institutions.

Courts when approached in PILs have repeatedly held that the CBFC is an expert body and that its determinations are generally not open to substantive review on content (as opposed to procedural irregularities). This legal rule is not strictly adopted and there are instances of courts revoking censor board certificates. In most cases even when censor board certificates are upheld, courts do not stay their hands and enter into subjective assessments of the movie in any case. This brings pressure on the movie producer who may again reach a compromise with the court by making cuts. The two rounds of litigation in S. Rangarajan v. P. Jagjivan Ram, 1989 SCC (2) 574, illustrate the tendency of courts to substantially review content. Finally determined by the Supreme Court of India, the case originated from a petition before the Madras High Court, which revoked the CBFC certificate granted to Ore Oru Gramathile (In One Village). The Supreme Court restored it on appeal, permitting the exhibition of the movie. This judgement is celebrated as a victory of freedom of speech, but given that the Supreme Court engages in a review of the content, it rather endangers liberty. It not only discusses the theme of the movie, but each scene the High Court found objectionable. There is a legal discussion of the characters, dialogue, and even the accent in which it is delivered. Such minute examination was later used by courts for making subjective determinations, even after a movie had received a CBFC certificate.

Filmmakers also contend with the risk of criminal complaints and FIRs filed in various corners of the country. These may contain allegations of obscenity, sedition, and defamation. The law with respect to criminalising speech is wide and extensive, permitting legal offence when no factual offence exists. The Supreme Court in Raj Kapoor v. Laxman, 1980 SCR (2) 512, by reading Section 79 of the Indian Penal Code, 1860 with Section 5-A of the Cinematograph Act, has held that such criminal processes against a movie with a CBFC certificate are legally unsustainable. Section 79, akin to a safe harbour protection, provides that nothing is an offence which is done by any person who is justified by law. The law in this context is the Cinematograph Act under which a filmmaker is granted a CBFC certificate. However, while laying down this pronouncement, it Court also held that the accused filmmaker has to participate in the legal process at the trial court and claim a bar under Section 79. There is therefore, no absolute bar. If accused, the filmmaker has to face the pressure of a criminal trial.

Haider_VishalBhardwaj_posterDespite Haider’s valid CBFC certificate therefore, Vishal Bhardwaj has formidable legal battles awaiting him at the High Court of Allahabad and the trial court in Panaji. Can we pass it off to coincidence that the Supreme Court remarked in Raza Khan v. State of Uttar Pradesh, SLP (Civ.) No. 31797 of 2010 that “Something is rotten in the State of Denmark, said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court, as this case illustrates”.

Effects of cinema censorship

Through its exaggerated metaphors and tinted images, cinema can question power with truth. Decades of censorship however, have prevented the cinema of history, politics, and current affairs. The pattern in democratic India has not been different from the colonial era when the Dramatic Performances Act, 1878 was used to ban Nildarpana, a play based on the plight of indigo farmers and Bhakta Vidur became the first movie to be banned under the Cinematograph Act, 1918 because its protagonist resembled M.K. Gandhi.

To prevent financial penury, mainstream cinema has rejected themes which lead to such controversy. Even if these are audience preferences, our legal system has contributed to it. Today, cinema treats us as infants— persons without well-formed thoughts, incapable of deeper introspection. This is what the success of Haider challenges— not its mere financial success but its ability to spark political discussions on issues that require wider introspection such as the morality of a law such as the Armed Forces Special Powers Act, 1958 and of received truths about patriotism. It is this very ability which is being impugned in a court and a police station.

To end, we should fear the censors not merely for preventing movies from release but also for contributing to the apathy of audiences. Today, the audience expects very little from cinema, is accustomed to big budget entertainers, and has lost interest in drama and Shakespeare. It forgets the movie as soon as the credits roll and shrugs off criticism of mainstream movies with, “Hey relax, it’s just a movie”.

(Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.)

Human Rights

Where “breast” becomes “chest”: Extra-legal penalties and the muddled regulation of Indian TV

AparGupta_freedomofspeechAre you familiar with ‘newspeak’? No, not the fictional language from Orwell’s Nineteen Eighty-Four. I am referring to the language beamed across India on television channels every minute. In it, “breast” becomes “chest”, “panties” becomes “pants”, and “beef” becomes “meat”. This display of Victorian sensibility on television is the result of government regulation and private attempts to avoid harsh penalties. Let us examine in detail the regulatory muddle causing this witless display.

Regulating television broadcast

The Cable Television Networks (Regulation) Act, 1995 (“the Act”) was enacted as the principal legislation to govern television channels in India. Section 5 of the Act prepares the ground for content regulation of broadcasts and prohibits telecast of programmes that do not conform to the “prescribed content code”. The Act itself does not define such a “content code”, it has been prescribed in the Cable Television Regulation Rules, 1994, a piece of delegated legislation. Rule 6, popularly called the “Content Code rules”, contains a laundry list of various parameters within which all programme content has to be telecast.

They are vague, generalised, and seek to assuage the hypersensitivity of the most conservative individuals. For instance, it prohibits content that “(i) Criticizes, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country;” or, “(k) Denigrates women through the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals;”. Such language may appear innocent but becomes nocuous when it has the force of law.

It is also relevant to notice the Policy Guidelines for Uplinking of Television Channels from India, which regulates licenses to television broadcasters to transmit signals from India and the Policy Guidelines for Downlinking of Television Channels to India, which regulates the licenses for transmission to television sets in India (“the policy guidelines”). Both of them contain a chapter titled “Terms and Conditions” that mandates that licensees should comply with the Content Code, failing which licenses for transmission may be rescinded.

Enforcement of television broadcast regulations

WorkSafeAntiSexualHarassmentWhat is a right without a remedy? What is a prohibition without a penalty? Both the Act and the policy guidelines prescribe the consequences of breaching the Content Code rules. The Act permits the Union government to prohibit the transmission of any channel or programmefor a prescribed period of time or even permanently. The policyguidelines contain further details including a three-strike clause,under which the nature of the penalty increases upon repeat violations andon the third violation, the government can revoke the license of a television channel.

The content code and its penalties are not enforced by an independent regulator but a body of senior bureaucrats called the Inter-Ministerial Group. Chaired by the Secretary of the Ministry of Information and Broadcasting (“the Ministry”), it reviews complaints sent by the public and through another government body, the Electronic Media Monitoring Centre,screens content on television for violations of the Content Code rules. Even if this may sound reasonable in theory, due to the vagaries of the Content Code rules and the harsh penalties for their violation, some peculiar practices have evolved to cause censorship even without the need to revoke the license of a broadcaster.

These practices include the enforcement of extra-legal penalties. A letter from the Ministry to various state governments dated February 19, 2008 states that violations of the Content Code should be dealt with by issuing advisories, warnings, and orders to display apology scrolls. A list of actions or decisions taken for violations of the Content Code between 2004 and March, 2014 lists only 254 cases. Only in 21 out of these 254 cases has the statutory penalty of prohibition of broadcast been imposed. In the remaining 233 cases, despite a specific finding of a violation, the action was either the issuance of an advisory or a warning, or an order to display an apology scroll.

The problem with such an approach is plainly evident. The penalties which are in the nature of advisories, warnings, and orders to display apology scrolls are not prescribed under the Act. They do not have legal force and (at least in theory) do not censure the broadcaster. This may appear to be the benevolence of the State in ensuring freedom of speech but in fact results in the contrary. Legalities are punished and illegalities are conceded.


Such extra-legal penalties are much more harmful for media plurality and content diversity. They allow hypersensitive censors to cut up sentences on the mere apprehension of insensitivity or even criticism.Prior to issuing the warning, advisory, or the direction to run an apology scroll, the private broadcaster is given an opportunity to present their defence. Most often, while presenting such a defence, a private broadcaster submits an apology and seeks pardon for the alleged transgression. This is understandable. In the absence of such deference and self-censure, the penalty may increase from a mere warning to either the prohibition of the telecast of the channel or worse, the cancellation of the license to broadcast.

Such measures, which lack the force of law, also come at the cost of ignoring serious violations for which harsh penalties may be justified. To illustrate, various quiz-based shows make inadequate disclosures about the charges of participation and are designed to dupe viewers. To participate, a viewer has to make a phone call to a number carrying an excessive and expensive per-minute charge (often the pulse duration is even less than thirty seconds). On making such a call, the viewer is placed on hold for several minutes so that the channel earns revenue from the call. Rather than taking any firm action about such dishonest practices, the Ministry, on the receipt of several complaints, merely issued an advisory on September 29, 2011. Expectedly, these quiz shows and the cheating of viewers continues unabated.

Another name for censorship

Self-regulation has more recently been posed as an industry alternative to state censorship. Self-regulation, it has been argued, presents the ideal balance between artistic freedom and cultural sensibilities. Two prominent self-regulatory bodies floated by television channels are, the Broadcast Content Complaints Council (“BCCC”) and the News Broadcasting Standards Authority (“NBSA”). These two organisations havepublished self-regulatory codes and even have an adjudicatory mechanism in place, and through these measures, hope to ensure compliance with the Content code and maintain artistic liberty at the same time. Their results till date, have been questionable.

At a conceptual level itself, the self-regulatory codes have for the first time, put in place a formal content-screening process based on the Act itself. While they may read the law liberally, they do not depart from its fundamental regression. The Content Code remains the basis of prescribed criteria under the self-regulatory guidelines. Content code. It is important to stress that censorship was the Content Code has always been “post-publication”, that is, enforced after the telecast.

Now on the other hand, most television channels formally screen their content through their ‘standard and practices’ departments. That is the reason we are inundated with creative edits to words which may cause offence. Innocuous words such as, “breast”, “sex”, and “virginity” are either bleeped or dubbed over completely. Worse, there are the subtitles that display the word  “chest” or a string of stars – “*****” – where the word “breast” should be. This is done devoid of context, for instance, even where the phrase is “breast cancer”. Certainly, even when television channels act as censors, they often replace their scissors with a butcher’s knife.

Other problems persist with self-regulatory censorship. There is a limit to their jurisdiction and reach. The orders of the BCCC and the Indian Broadcasting Foundation are not enforceable in a court of law. Often private compromises are reached and such instances have been documented. Moreover, only a fraction of the channels have become members of such organisations. Out of the 402 general entertainment channels, only 250 are governed by the BCCC. Similarly, out of the 393 news channels registered in India, only 45 are members of the NBSA. There also concerns about a lack of transparency in the publication of complaints and orders. Such concerns need to be addressed through legislation.

Way forward

InfrastructureLawRecently with a change in government, there has been a push to review existing legislation and policy. The Minister for Information and Broadcasting said on June 7, 2014, that he was in favour of abolishing state regulation. Even though such measures may be excessive, to ensure a modicum of sensibility to content regulation, the following steps are suggested.

The self-regulatory organisations to their credit, have not acted merely as bodies to limit the harsh penalties under the Cable Television Networks Act. They have in the past requested for a system of co-regulation, in which a legislation grants them statutory recognition and aids in curing the legal deficiencies that exist. They recognise that at present, they are at best a stop-gap arrangement.The longer such an ad-hoc system continues, the more damage there will be to artistic freedom and freedom of speech.

We also need to look beyond the regressive content code. Any content regulation must place an emphasis on context and censorship has to be proportional to the end that is sought to be achieved. An easy alternative is to link the content code to existing penal provisions. For instance, rather than prohibiting, “criticism of individuals”, a reference may be made to Section 499 of the Indian Penal Code, 1860 containing the offence of defamation. Even though such provisions may be regressive, theyat least have legal ingredients that have been refined by court rulings. Moreover, the present system of overbroad censorship, often caused by broadly defined categories under the Content Code, will abate. Most offences contain precise definitions and legal ingredients which can be applied more easily and in a limited manner by the television channels.

Finally, any legal reform must appreciate the role of the public as not only having the right to complain against offensive content but also the right to view it. Hence, the element of public injury which permits complaints, needs to ensure a system of transparency and pro-active disclosures. Any censorship which is caused, either by private self-regulatory bodies or by the government, needs to be disclosed and published. Moreover, even third parties should be permitted to file legal challenges against any censure. Such a remedy would add teeth to the right to view and receive information which has been recognised to be part of the freedom of speech and expression and is even recognised in cases of censorship of books and written materials.

These solutions would merely be the beginning. The more fundamental question that has to be answered with courage and honesty is to what extent law should censor television broadcasts. If we shirk away any longer, we may continue being governed by a content code which restrains breast cancer awareness programming but permits sensationalist news broadcasts about young women drinking in pubs.

Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.

Human Rights

Censors between the book-ends: A tragic age for book censorship

AparGupta_freedomofspeechThere was a sense of prophecy when D.H. Lawrence penned the first line to Lady Chatterley’s Lover, his novel about how, impervious to how it often ends in loss, we continue to seek romance. The words, “[o]urs is essentially a tragic age, so we refuse to take it tragically”, had a wider prescription. Little did Lawrence know that his book would inspire in India, the nebulous legal standards for obscenity that would become catastrophic for the liberty of authors, publishers, and readers.

In 1964, acting on the prosecution of a bookseller for obscenity under Section 292 of the Indian Penal Code, 1860 (“IPC”) for the sale of this book, a three-judge bench of the Supreme Court of India adopted the “Hicklin test”. The Court stated in Ranjit Udeshi v. State of Maharashtra that, “the tendency of the matter charged as obscene must be to deprave and corrupt those, whose minds are open to such immoral influences and into whose hands a publication of the sort may fall, so far followed in India, is the right test.” Even today, FIRs are filed against authors while courts continue to deliberate the fuzzy standards for obscenity. Moreover, for each word they write, authors have to negotiate several other content-based offences.

The process of banning a book

LadyChatterleysLoverEven though individual prosecutions for obscenity and other offences occur regularly, they do not, by themselves, result in the prohibition of the sale or distribution of a book. This power of forfeiture comes from Section 95 of the Code of Criminal Procedure, 1973 (“CrPC”), which allows a state government to prohibit a publication by a notification in the official gazette. In its the recent decision in State of Maharashtra v. S. Damodar, the Supreme Court, while overturning a ban on James Laine’s book on Shivaji, stated the ingredients of a valid notification prohibiting a publication.

The state government must first form an opinion that the matter constitutes an offence under one of Sections 124A (sedition), 153A (communalism), 153B (insults to religions), 292 (obscenity), or 295A (outraging religious feelings) of the IPC. Secondly, such an opinion should be published in the official gazette. Importantly, a police officer’s power under this process is not limited to the territorial limits of any state in which the ban has been issued. With the power to confiscate and prosecute publications made available throughout India therefore, even when a book banning notification is issued in Maharashtra, it is often pulled from sale from online bookstores and bookstores in other states.

A statutory opportunity to contest such a ban is provided in Section 96 of the CrPC itself. It allows appeals to the High Court of the state in which the notification for banning has been issued. Further, this right of appeal is not limited to the author or the publisher. Any other person may sue as well. Section 96 therefore, is one of the few provisions of law, which expressly recognises the right to read and the public injury from a ban. It is interesting to note that this provision in its original form can be traced to the Code of Criminal Procedure, 1889 and so ideologically, does not sprout from our constitutional jurisprudence.

TheSatanicVerses_SalmanRushdieSince such a power to ban a publication is available only to the state government, the Union Government has made inventive use of the Customs Act, 1952 (“Customs Act”), most glaringly to prohibit the import of Salman Rushdie’s The Satanic Verses through a notification dated October 5, 1988 under Section 11 of the Customs Act. Rushdie is not alone. Many books on Kashmir and critical accounts of the assassination of Mahatma Gandhi and the Sino-Indian War remain banned by customs authorities.

Private censorship

Though censorship of books by the state in the manner described above has decreased in frequency over the past few years, a worrying trend has emerged in which private persons have successfully caused the censorship of many books. Such censorship, either through a private compromise with the publisher or through a court injunction that is issued before the case is heard on evidence, is mostly a result of allegations of defamation. Defamation exists independently as a criminal offence and as a civil wrong.

Section 499 of the IPC defines the offence of defamation. People found guilty can be sentenced to imprisonment for up to two years. The civil wrong is based on common law and is derived from the judgments of courts and plaintiffs usually seek damages and a perpetual injunction against the defendant from publishing or distributing the work. In practice however, due to delays, criminal trials are itself a process in harassment for authors and publishers and civil suits are compromised after interim injunctions are liberally issued.

WendyDoninger_TheHindu_TheDescentofAirIndia_BhargavaThe most visible instance of a criminal trial resulting in a compromise for pulping a book is the case of Wendy Doniger’s The Hindus. The book was withdrawn pursuant to a compromise between its publisher Penguin and Dinanath Batra, a former general secretary of the education wing of the Rashtriya Swayamsevak Sangh, who had instituted a complaint case under various offences against them. The author’s public statement to quell the criticism faced by the publisher blamed substantive offences in Indian law, specifically Section 295A of the IPC. Another recent instance is that of Bloomsbury withdrawing Jitender Bhargava’s The Descent of Air India under the terms of the settlement of the criminal defamation case instituted in a Mumbai court by Praful Patel, the former Union Minister for Civil Aviation.

The position with respect to civil suits is not much better. It took five years for Kushwant Singh to have an interim inunction lifted from the Delhi High Court for a chapter he wrote about Maneka Gandhi which she alleged, was defamatory. Setting aside the interim injunction, the High Court rebuked the Single Judge’s order stating that its observations about the “high thinking, higher living and high learning of the author are TheBeautifulAndTheDamned_Deb_SaharaTheUntoldStory_Tamalsubjective moralistic observations.” Other recent court injunctions include ones issued by a district court in Silchar against a chapter in Siddharth Deb’s, The Beautiful and the Damned and against Tamal Bandyopadhyay’s Sahara: The Untold Story. One senses a pattern where it is easier to get an interim injunction and then coerce the author to drop a passage than for the author to appeal the injunction, persevere, and then publish the book in its entirety.

More often, one finds that even before a case is filed through the device of a legal notice to the publisher quoting exaggerated and anticipated damages, private parties successfully prevent publications. A recent attempt at this was made by Reliance Industries who sent a legal notice claiming a hundred crore rupees as damages from the author of Gas Wars, Paranjoy Thakurta. Distressingly, such bullying often finds success. Quite recently, Orient Blackswan withdrew Megha Kumar’s Communalism and Sexual Violence: CommunalismSexualViolence_GasWars_PrananjoyGuhaThakurtaAhmedabad Since 1969 following a legal notice sent by Dinanath Batra against another book in its catalogue! Following the receipt of the notice, the publisher commenced a review of its entire catalog, resulting in the withdrawal. Many blame the publishers, but most blame the laws which allow such offence. Though experienced litigators often term such actions as an abuse of law, many would ask, if the law permits such abuse, isn’t the law by itself abusive?

Liberalism through judgments?

In this raging debate, a popular opinion is that the higher judiciary has imparted a liberal reading of the law in favor of authors. This impression is only grounded in rhetoric for several reasons. Quite obviously, most authors and publishers have to wait for years and exhaust the process of appeals before they can approach the higher courts. Any such remedy therefore is an illusory one. Even when writ remedies or an accelerated appeals process is availed of, the approach of the High Courts and the Supreme Court has generally been conservative.

Most often, the higher judiciary examines irregularities either in the criminal procedure or in the banning notification alone. It helps that complainants do not reason the ingredients of the offence complained of and that banning notifications are passed without stating any grounds for the opinion. The examination does not go deeper and the higher courts generally prefer to remand the case for a trial by evidence or defer to the opinion of the state government. Even when such a process-based scrutiny is applied, courts do not hesitate to become censors by themselves.

Legal Research AdvertisementTwo of the latest book banning cases from the Supreme Court illustrates this point. In State of Maharashtra v. S. Damodar, the Court only looked at the ingredients of the banning notification issued by the state government, which made reference to a FIR registered under Section 153A. Since the Court had previously quashed the FIR, it set aside the banning notification. Prior to doing this, in an oral hearing, the Court made a suggestion to delete the alleged offensive passages to enable the state government to lift the ban on the book.

The second instance is where the Supreme Court, in Sri Baragur Ramachandrappa v. State of Karnataka, upheld the notification banning Dharmakaarana, a Kannada novel by P.V. Narayana. In reaching its decision to uphold the banning notification, the Supreme Court cited additional “offensive” passages that were not cited in the banning notification. In a sense, it seemed that the Supreme Court was substituting its own reasons for the ban, going beyond the ones given by the state government. As with Damodar’s Case, the Court again asked the author to delete the offending passages.

Even otherwise, it remains beyond dispute that the underlying substantive law, in spite of attempts to limit its application by precedent, remains subjective. During such a subjective assessment, the content by itself is often examined, and the subjectivity in the law allows for tremendous discretion and inconsistency. A good illustration of this is the recent Supreme Court decision in Aveek Sarkar v. State of West Bengal, where a two-judge bench of the Supreme Court expressly stated that the Hicklin test is outdated and moved towards the more liberal “community standards test” as laid down by the United States Supreme Court in Miller v. California.

Though many would celebrate this shift in precedent, it should be greeted with cautious optimism. Since, the judgment in the Ranjit Udeshi Case was pronounced by a three-judge bench, the observations in Aveek Sarkar by a two-judge bench appear to be per incuriam. Secondly, there exists a vast gap between doctrinal liberalism and its practical application. For years at end, district courts will continue to apply the time honed Hicklin test. Finally, even substantively, the application in Aveek Sarkar is by a panel of judges who sit in the place of the jury and apply “community standards”. While this may often lead to outcomes that favour expression over censorship, it again inheres subjectivity in application. The purported high thresholds set by Aveek Sarkar, remain only in theory.

These cases demonstrate that the Supreme Court is often clumsy and lacks ideological consistency its free speech jurisprudence. In his personal essays explaining the motivations for the themes and styles that would offend many, D.H. Lawrence stated that he had set out to conquer taboos. In this, he failed in India. Sections of our society remain conservative and puritanical to the extent of being exclusionary against views that do not conform to their beliefs. Worse, the law allows their annoyance as an offence and their morality as legality. Close to a century since Lady Chatterley’s Lover was first written, we still remained tethered to Victorian virtues trapped in legal codes. It comes as some comfort that authors rarely care about law when they write, for they have “got to live, no matter how many skies have fallen”.

Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.

Human Rights

The power of licences to censor

AparGupta_freedomofspeechAny study of censorship has to commence with the power of licensing. Shortly after the War for Independence, our colonial masters realised that it was inefficient to enforce criminal sanction for each distinct act of dissent when the mode of expression itself could be prevented by prescribing a set of licensing conditions. Simply, why pulp the paper when you can seize the printing press?

The establishment of a monopoly

The initial prohibition on vernacular publications slowly gained sophistication. The first feature of the licensing system was the express creation of a state monopoly through statute. Private industry had to then operate within a set of requirements prescribed in the statute. Take for instance, the licensing of telegraphs.

Though the physical apparatus of a telegraph has ceased operation, the Telegraph Act, 1885 still holds the field. Under Section 4, the Central Government has the exclusive privilege of establishing, maintaining, and working telegraphs in India. So, even after the process of liberalisation and iterations of the National Telecom Policy, every private telecom operator remains a mere licencee of the Central Government. This licence, which may be a Unified Access Services licence or an Internet Service Provider licence often becomes a unilateral contract prescribed by the Government. All private operators, and by extension their subscribers, have to adhere to the conditions in these contracts.

Licences in India control the medium of dissemination, the substantive content that is disseminated, and some times even the receipt of content. This is all done on the basis of the medium itself, as the law discriminates between newspapers printed on paper, movie exhibitions, television signals, and telephone conversations. Layered and complex, the law consists of law made by Parliament and the State Legislatures. The regulation of newspapers today illustrates this well.

Licensing through registration

Sisir Kumar Ghose (above) was the founder of the Amrita Bazar Patrika, a newspaper that was said to be a principal target of the Vernacular Press Act, 1878, which was passed under the Governor Generalship of Lord Lytton. The law provided for submitting to the police, all the proof sheets of Indian language newspapers before publication.
Sisir Kumar Ghose (above) was the founder of the Amrita Bazar Patrika, a newspaper that was said to be a principal target of the Vernacular Press Act, 1878, which was passed under the Governor Generalship of Lord Lytton. The law provided for submitting to the police, all the proof sheets of Indian language newspapers before publication.

One of the largest mediums in terms of reach, an absolute monopoly has not been expressly prescribed for newspapers. The relevant legal provisions of the system of licensing are contained in the Press and Registration of Books Act, 1867 (“the 1867 law”). Even though the Statement and Objectives state the innocent objective of ensuring that copies of every publication are properly archived by the State, the law goes much beyond ensuring a comprehensive catalogue of the news. The law, which also applies to books and pamphlets, calls for the compulsory declaration of the name of the printer and publisher and the registration of every printing press before the District Magistrate.

A.G. Noorani, in a series of articles published in the Economic and Political Weekly, has documented how this law has been used to enforce (often unlawful) censorship in smaller towns and areas outside metros. The smaller vernacular press also lacked the financial muscle and the professional networks to draw attention, and to resist these attempts. He has highlighted the fact that such declarations are often used by the state administration to harass owners and editors and has also cited one instance where a District Magistrate, relying on a highly technical rule, cancelled the registration of a local newspaper.

Indirect attempts at censorship

This 1867 law pales in comparison to the effort made by the Union Government to neuter the press with the enactment of the Newspaper (Price and Page) Act, 1956, which empowered the Union Government to regulate the prices of newspapers in relation to their pages and sizes and to regulate the allocation of space in newspapers for advertising. In Sakal Papers Ltd. v. Union of India, the Supreme Court determined the constitutionality of this law. The judges stated expressly that the attempt to limit monopolies by fixing prices against the number of pages printed was an attempt to interfere with the freedom of circulation of newspapers and declared parts of the law repugnant to the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India, and hence unconstitional.

This decision however, did not impede governments from regulating the content in newspapers through licensing. The Newsprint Policy for 1972-73 made under the Newsprint Control Order, 1962, attempted to ration newsprint. The owners of the Times of India approached the Supreme Court alleging that it violated their fundamental rights, and in Bennett Coleman and Co. and Others v. Union of India, Justice Sikri, speaking for the majority said that the measure was “not newsprint control but newspaper control.” While the Court declared the policy to be contrary to Article 21 for being arbitrary and against Article 19(1)(a), it also emphasised that the power of the government to import and control the distribution of newsprint cannot be denied. The exercise of such power however, has to be within the bounds of the Constitution.

Reframing the law

IPThe Union Government has recently proposed an update to the antiquated 1867 law, increasing its thresholds. Firstly, the Draft Press and Registration of Books Bill, 2013 proposes to extend the coverage of the law to online editions of newspapers. Secondly, it proposes a substantive review of the application for registration itself and prohibits persons convicted of acts of terror and unlawful activity from making such publications. While a convicted terrorist may be guilty of terrorism, such a conviction does not extinguish fundamental rights and it is not understood how such an absolute and complete pre-censorship can be imposed.

A larger concern is the continuity in approach with the 1867 law and the proposals only seek to make the law more onerous. This colonial mistrust of the Press is misplaced with our aspirations of being a mature democracy that trusts its citizens and this amount of regulation is an indicator that rather than tackling such issues with better policing and increased transparency, State entities fear that publications will prompt law and order problems.

This will be a theme in my forthcoming columns as well, specifically focusing on the regulation and censorship of movies and the broadcast of television content. I hope to demonstrate that rather than merely extending the existing regulations, we need a nuanced debate impugning the basis of our colonial laws. With the spread of Internet and mobile communication, we are witnessing a change of season. Laws are becoming redundant, not with the progress of time, but with the progress of technology. Licensing regulations, which sprouted with a sepoy revolt and were then bonded in fabian socialism, need to be shed this autumn.

(Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.)