The Ban on Kamal Hassan?s Viswaroopam: A Disgrace for Indian Democracy (by Karmanye Thadani)

I had co-authored with two of my dear friends a short book titled “Onslaughts on Free Speech in India by Means of Unwarranted Film Bans: An Issue Revisited in the Light of the ‘Aarakshan’ Controversy”, which was published on 22nd May 2012. But after ‘Aarakshan’ (and a whole lot of films preceding it, including the Hollywood movie ‘The Da Vinci Code’, which was banned even in a state like Punjab in spite of its tiny Catholic population until the ban was lifted by the judiciary), the issue has resurfaced yet again with the screening of the new Kamal Hassan flick ‘Viswaroopam’ (which has obtained the clearance of the Central Board of Film Certification, popularly known as the censor board) being prohibited by the Tamil Nadu government, yielding to protesting Muslim groups, and the South Indian cinema veteran has called this “cultural terrorism” and clarified that the film had nothing against Muslims per se (and I tend to agree with him, for I am sure that a film showing Muslims per se in bad light would have indeed never been cleared by the censor board in the first place), and indeed, as a matter of fact, even ‘Aarakshan’ as a film was, by no means, anti-Dalit and wasn’t even anti-reservation, but still, protesters succeeded in getting the film banned in several states, forcing the producer Prakash Jha to move to the judiciary to get justice in the form of the revocation of these ludicrous bans, based on protests by those who had not even seen the movie! This is undoubtedly disgraceful for a country that proudly claims to be the world’s largest democracy (considering that it allows such violations of the right to freedom of speech and expression, even though the judiciary later undoes the damage, and even in the context iof Viswaroopam, the Tamil Nadu High Court has declared the ban as inappropriate and ordered its revocation) and the country that produces the highest number of films globally.

While each time, such bans of films generate much excitement and discussion in the media, few have ventured to look for a lasting solution to prevent this problem from occurring in the first place. I may humbly submit that my friends, with whom I co-authored the book, and I, have made an attempt in this direction. While the Supreme Court of India has stated in the landmark case of S. Rangarajan vs. P. Jagjivan Ram that “freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence” and that would “tantamount to negation of the rule of law and a surrender to blackmail and intimidation” and this precedent was cited subsequently in the hearings concerning ‘The Da Vinci Code’ and ‘Aarakshan’, what one needs to turn one’s attention to is the provision under which state governments actually prohibit the screenings of films in spite of their having cleared censorship requirements. The provision is Section 13 of the Cinematograph Act, 1952, which empowers the central government, state governments and local authorities to arbitrarily ban a film if it is “likely to cause a breach of the peace” of the region, and the producer doesn’t need to be given a reasonable opportunity of being heard in this context, in contravention with what are called in legal parlance the “principles of natural justice”. While the intention behind this statutory provision may have been noble, it has only been put to misuse by politicians wanting to be seen as vanguards of certain sections of the society for vote-bank politics.

What then is the possible solution? We have contended in the book that just like the investigating team of the National Human Rights Commission comprises retired police officers, a body headed by retired police officers should be appointed, perhaps under the aegis of the Central Board of Film Certification, to examine whether a film can actually create law-and-order problems of magnanimous proportions in spite of clearing the censorship requirements and only in these rarest of rare cases, should its screening be prohibited (after all, we do give considerable power to non-elected constitutional/statutory bodies like the courts, the Election Commission, NHRC and Central Board of Film Certification), and that body should have the authority to exercise the right to ban a film even after its release if it really causes problems of such a colossal nature. The decision of this body to prohibit the screening of a film or not do so purely on law-and-order grounds should be open to challenge in the courts, provided the one filing the petition can prove that the decision has been blatantly unfair and unreasonable. Section 13 should, hence, be amended accordingly. Otherwise, the right to freedom of speech and expression must be safeguarded and upheld.

While it is undoubtedly true that the apex court has inevitably lifted these unwarranted bans, such unnecessary litigation can and should be avoided as far as possible in the first place.