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India: Chauvinists of the Hindu Right and Film Censorship Board

The legal censor is the Censor Board, not Raj Thackeray

by Rajeev Dhavan, 6 October 2009

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October 5, 2009

THACKERAY USURPS STATE’S ROLE

by Rajeev Dhavan

The state government is guilty of grave dereliction of duty in letting a small-minded chauvinist decide on the issue

How long will this continue? To what extent will the Thackeray family usurp and function like the Censorship Board? In the present milieu, why did it become necessary for Karan Johar to seek and agree to follow the censorious advice of Raj ‘Censorship’ Thackeray? Is this the real state of affairs in India? Does ‘social censorship’ override legal censorship?

In the past apologies had come from Amitabh Bachchan. Michael Jackson paid a visit to Bal Thackeray, Deepa Mehta’s Water found a watery grave even before filming in Varanasi. After release, film theatres have been targeted in Gujarat over films Narendra Modi did not agree with. Social censorship has become easier and more dominating than legal censorship.

The latest addition to social censorship is over Karan Johar’s Wake Up Sid. At places, the film described the famous city by its old name (Bombay) instead of the new one (Mumbai). The new one is ostensibly the name of the old village of centuries ago. The actual new city of Bombay has known no other name than Bombay until now. A statement made by Raj Thackeray objected that the film used the word “Bombay” (which it has been for several recent centuries or decades) instead of Mumbai (which was, allegedly, the name of a pre-Bombay village) to describe the city.

The film itself has nothing whatsoever to do with the Bombay/Mumbai controversy. It is not a political statement. It is the story of a rich person’s son who finds himself out of favour for insolence to the family and looks to find a job of his choice. But, the use of the word ‘Bombay’ enraged Raj Thackeray, the Sena and their friends. May be, it didn’t enrage them. Divisive politics has become emotionless in the hands of its patrons. But Raj Thackeray made sure that until he was appeased by apology and compliance, the film was in jeopardy.

Law

It was not Thackeray who went to Johar’s house for making a request for removing the word ‘Bombay’ from the film. It is Johar who came in the contrite proverbial sack cloth and ashes to seek forgiveness and leave pre- censorial justice to Raj. The latter was insistent, uncompromising and self satisfied that a great wrong had been committed.

The solution was a disclaimer apologising for the use of Bombay instead of Mumbai. Thackeray so ordered, Johar had no choice but to obey. If he had not followed these prescriptions, protests would have been organised in Mumbai — even elsewhere in Maharashtra.

He was the selfappointed custodian of Maharashtrian rage. Film theatres would have been picketed, the post- release prospects of the film would have been blighted. The loans on the film would have mounted. Pirated versions would have finished off the commercial prospects of the film.

State censorship is bad enough, but politicised social censorship is ‘ nasty, brutish and short’. In India, various legal forms of censorship exist — under the Indian Penal Code, Customs Act, Criminal Procedure Code ( which has ban provisions), local statutes and so on. The incidence of censorship is high. The list is endless: Salman Rushdie’s book, Taslima Nasreen’s novels, the film Black Friday . The celebrated Raj Kapoor was taken to court for the film Satyam Shivam Sundaram . Many TV films were liberated into broadcast or circulation by the Supreme Court and other courts including Aakrosh on Gujarat violence, Chand Bujh Gaya on rioting, Anand Patwardhan’s Ram Ke Nam and his documentary In memory of Friends on Bhagat Singh, the TV serial Tamas by Bhishma Sawhney, Ore Ore Gramathile on casteism and many more.

The courts have been vigilant for free speech — including cinema and TV speech.

Earlier, the Supreme Court in the celebrated Romesh Thapar case ( 1950) suggested that precensorship was prima facie invasive of free speech. We are concerned here with speech before publication, distribution or circulation.

However in KA Abbas’s case ( 1971), the court allowed pre- censorship in cinema because of the nature of the medium. The only form of legal censorship permissible is by, and under, a law which is reasonable and within the constitutional categories of public order, the sovereignty and integrity of India, defamation, decency, morality, contempt of court and incitement of offence.

But the exercise of this power has not been given to Raj Thackeray, but to the film Censorship Board set up under the Cinematograph Act 1952 which was upheld in the Abbas case.

The principles to guide the board are the very same as the limitations that are in the Constitution.

The film is reviewed by experts under the Cinematograph ( Certification) Rules 1983. The process is rigorous including viewing. There have been misgivings that the board has been over- bearing, angular and conservative.

But, the complaint is that it goes over the top.

The view of the board is final. It can be challenged as it was in the case of Bandit Queen and other films. But some deference has to be shown to the board.

Responsibility

The Supreme Court went one step further. In Shankarappa’s case ( 2001), an argument was made that if the film was released there would be a law and order problem. The court rejected this facile objection.

Such factors were taken into account by the board. It was the duty of all authorities to follow the board’s decision.

The court went on to say: “ It is for the State Government concerned to see that law and order is maintained.

In any democratic society there are bound to be divergent views. Merely because a small section of the society has a different view, from that taken by the Tribunal, and choose to express their views by unlawful means would be no ground for the executive to review or revise a decision of the Tribunal. In such a case, the clear duty of the Government is to ensure that law and order is maintained by taking appropriate actions against persons who choose to breach the law.”

Bombay

The government could review the decision of the board. But it could not disobey it. There can always be protests about a film, but not threatening violence.

Criticism is maximally permitted.

But it can never be blackmail. Don’t see the film if you do not want to.
The legal censor is the Censor Board, not Raj Thackeray.
Or any one else. To allow Raj Thackeray the right to pre-censorship defies both democracy and the rule of law and signals the end of governance.
So far, our Constitution has been India’s framework of governance. Unlike other new constitutions, India’s constitutionally directed governance has succeeded where others have failed.

Social attitudes and pressures will always exist. But for social censorship to topple legal governance is an invitation to chaos.

A curious tail piece: The High Courts of Bombay, Calcutta and Madras are chartered and not amenable to simple statutory changes. So, even after Mumbai replaced Bombay for all other purposes, the High Court of Maharashtra is still called the “ High Court of Bombay”. Beyond that, if this is how constitutional governance is gazumped in what was Bombay, and is now Mumbai — I cry for you.

The writer is a Supreme Court lawyer