CASIHR Journal on Human Rights Practice Vol. I Issue 2 and Vol. II
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CASIHR JHRP Vol. 1 Issue 2, Vol. 2 Issues 1 &2 TABLE OF CONTENTS RESOLVING THE CENSORSHIP PARADOX ................................................................................. 2 ‘ONE MAN’S VULGARITY IS ANOTHER MAN’S LYRIC’: IS IT TIME FOR A NEW TEST OF OBSCENITY? ............................................................................................................................ 1 3 CHANGING CONTOURS OF HOMOSEXUALITY IN INDIA.......................................................... 19 PROTECTION OF HUMAN RIGHTS: THE IMPORTANCE OF HUMAN RIGHTS EDUCATION ..... 35 HUMAN CLONING – LEGAL AND POLICY CONCERNS ............................................................ 46 INTERNATIONAL LAW FOR THE ACTUALIZATION OF THE FREEDOM OF THE PRESS WITH SPECIAL EMPHASIS ON INDIA’S POSITION IN MEETING THE INTERNATIONAL ..................... 63 RE-DEFINING SEDITION IN INDEPENDENT ............................................................................. 75 THE REPUBLIC OF HATE SPEECH AND RELIGIOUS SENTIMENTS .......................................... 94 HATE SPEECH – CHALLENGE TO FREE SPEECH .................................................................. 107 AN ANALYSIS OF FREE SPEECH AND HATE SPEECH AND THE DIFFERENCE, IF ANY, BETWEEN THE TWO ............................................................................................................... 121 “CENSORSHIP” – A NEW WAY TO CLAMP DOWN ON ARTISTIC EXPRESSION .................... 139 A HUMAN RIGHTS ANALYSIS OF REPRODUCTIVE RIGHTS .................................................. 150 COMBATING HATE SPEECH: A STUDY OF THE EXISTING PROVISIONS ............................... 157 BOOK REVIEW- RAVISH KUMAR THE FREE VOICE ON DEMOCRACY, CULTURE AND THE NATION .................................................................................................................................. 171 ENLARGING SCOPE OF PRISONER’S RIGHT TO VISITATION: A CRITIQUE OF RIGHT TO PROCREATION ....................................................................................................................... 176 HATE SPEECH AND FREEDOM OF SPEECH: A LEGAL SCRUTINY ........................................ 192 THE GOOD, THE BAD AND THE MORALLY PATERNALISTIC: THE JUDICIARY ON FREEDOM OF SPEECH AND EXPRESSION IN INDIA ................................................................................. 205 MANDATORILY STANDING DURING NATIONAL ANTHEM – JEOPARDISING FREEDOM OF SPEECH AND EXPRESSION ..................................................................................................... 217 1 CASIHR JHRP Vol. 1 Issue 2, Vol. 2 Issues 1 &2 RESOLVING THE CENSORSHIP PARADOX ARYA WARRIER ASHNA D 1. INTRODUCTION In response to our glorious victory and independence from British rule, the architects of our Constitution, guaranteed us in Chapter III, a fundamental right to freedom of speech and expression under Article 19(1)(a)1. Being the largest and perhaps most diverse democracy in the world, this liberty is of utmost importance. Yet, we find this freedom being constantly threatened by the idea of censorship. To begin with, let us understand what the word censorship means. Censorship is derived from the Latin word censure which means “to assess or estimate.”2 In the next few paragraphs, we shall study the brief history of censorship during the British era, and how the Central Board of Film Certification (CBFC) came into being. Literature, films and events are imperative in a society which is constantly shaped by emerging ideas and thoughts. Across the spectrum of society, they are tools that engage people in discussion, provide the oppressed with a platform to voice their grievances, create awareness and entertain the masses. Cinema or motion pictures has been defined as the art of colourful moving images.3 Expressions through mediums like art and literary works, can be considered as few of the many ways of expressing freely, our thoughts. Books enable people to express themselves; films with their broad outreach help break the barriers of illiteracy, and events set the tone for critical discussions. During the British era in England, there were various kinds of controls on then fast becoming popular “cinemas”. It became necessary to have licenses for every public screening and the world’s first legislation in cinematograph was passed in 1909, in Britain. The aim, though quite ambiguous, was to ensure safety Third Year, B.A. LLB (Hons.), National University of Advanced legal studies, Kochi. Second Year, B.A. LLB (Hons.), National University of Advanced legal studies, Kochi. 1INDIA CONST. art. 19, cl. 1. 2JOHN MCCORMICK „&‟. MAIRI MACINNES, VERSIONS OF CENSORSHIP 11 ( John McCormick et al.Mairi MacInnes) (2011). 3Gabe Moura, What’s cinema, ELEMENTS OF CINEMA, (Jul. 14, 2016, 04:00PM) , http://www.elementsofcinema.com/cinema/definition-and-brief-history 2 CASIHR JHRP Vol. 1 Issue 2, Vol. 2 Issues 1 &2 standards by controlling all the licenses issued. Thereafter, The British board of film censors was formed in the year 19124. Back home, in India, the first full length film, Raja Harishchandra, was released in the year 1913. Half a decade later, the Imperial Council proposed the introduction of a bill, which in their words “ensured the protection of the public from indecent or otherwise objectionable acts.” Thus was born the Cinematograph act of 1918 which gave magistrates the power to issue licenses based on whether the films were suitable for public watching. This was later replaced by the 1952 act that we know of today, which lays down provisions for the certification, regulation and exhibitions made by means of cinematographs5. Back then, too, it was not mentioned what the inspectors had to look for while issuing these licenses. Meanwhile, censor boards began to be established in the year 1920, in all the major presidencies. They adopted sets of rules to judge the appropriateness of the all the films that were being released in the Indian subcontinent. Pleasantly enough, the administration of the Bombay Board of Film Censors laid down that “no generally and rigidly applicable rules of censorship shall be laid down”. Soon, there was also an Indian Cinematograph Committee that was set up. However, going through various accounts, the ultimate taboo, as it seems, was not obscenity but nationalism and of course the various depictions of Gandhi. Listed in the Journal of The Motion Picture Society of India (1937) are the titles of banned newsreels—Mahatma Gandhi’s Historic March, Gandhi Sees the King, Bombay, Mahatma Gandhi After his Release, and several others—short non-fiction reports that the British clamped down on. Gandhi was in fact the hidden subject of the first film to be banned in India.6 Decades later, in 1983, the Central Board of Film Certification was formed. All the regional boards were abolished, and U and A were adopted as certification categories. The Indian Press Emergency Act was scrapped in the year 1931. It abolished pre- censorship of newspapers in India. However, there was no corresponding act to abolish the same in films. The act of 1918 was repealed but was later replaced with an act that was more or less similar in scope.7Kissa Kursi ka, which is seen by most people as India’s first political spoof, was said to be loosely based on Sanjay Gandhi’s power in the government. It was refused a censor certificate. When 4Uday Bhatia, 100 years of film censorship in India, LIVEMINT ( Jul. 14, 2018, 08:59 AM) , https://www.livemint.com/Leisure/j8SzkGgRoXofpxn57F8nZP/100-years-of-film-censorship-in-India.html 5Id. at 4. 6Id.at 4. 7Arpan Banerjee, Political Censorship and Indian Cinematographic Laws: A Functionalist Liberal Analysis, 2 SSRN 557, 595 (2010). 3 CASIHR JHRP Vol. 1 Issue 2, Vol. 2 Issues 1 &2 emergency was declared in the country, the master print and negatives of the movie were confiscated and burnt by congress workers. This was a case of censorship much outside the purview of law itself.8 The fundamental question that arises is why the legislation is so problematic and why it is not implemented and enforced in the correct manner. To understand this, one must look into the legislation governing censorship. The heart of the legislation is section 5(B), which gives the board, vague, not to mention vast powers, to play with certifications. The section states that “anything which is against the interests of the security of the state, public order, decency or morality or involves defamation or contempt of the court or is likely to incite the commission of the offence” can be denied a certificate. Furthermore, it is to be noted that the government has the power to issue rules- which the board must follow. The problem with the rules is that not all may be followed, and those which are followed and implemented are done, according to the convenience of the people heading the committee. This was the condition of the film censorship immediately after independence. Barring a few committees and a few other minor changes in rules- the system, 72 years on, is almost the same. There persists an attitude that was most evident during the British era, that the viewers are incapable of deciding for themselves what they want or should view. Art is subjective. Therefore, wanting to watch a film or not should be left to each person’s sensibilities. Often, it is clear that the CBFC denies certificates or ban films, not as per the rules established or its obscene and vulgar content, but because of pressure from various political parties. 2. CENSORSHIP OF FILMS, BOOKS AND EVENTS – A CRITICAL