www.whiteblacklegal.co.in ISSN: 2581-8503 VOLUME 1: ISSUE 9 ||January 2020 || Email: [email protected] Website: www.whiteblacklegal.co.in 1 www.whiteblacklegal.co.in ISSN: 2581-8503 DISCLAIMER No part of this publication may be reproduced or copied in any form by any means without prior written permission of Editor-in-chief of White Black Legal – The Law Journal. The Editorial Team of White Black Legal holds the copyright to all articles contributed to this publication. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of White Black Legal. Though all efforts are made to ensure the accuracy and correctness of the information published, White Black Legal shall not be responsible for any errors caused due to oversight or otherwise. 2 www.whiteblacklegal.co.in ISSN: 2581-8503 EDITORIAL TEAM EDITOR IN CHIEF Name - Mr. Varun Agrawal Consultant || SUMEG FINANCIAL SERVICES PVT.LTD. Phone - +91-9990670288 Email - [email protected] EDITOR Name - Mr. Anand Agrawal Consultant|| SUMEG FINANCIAL SERVICES PVT.LTD. EDITOR (HONORARY) Name - Smt Surbhi Mittal Manager || PSU EDITOR(HONORARY) Name - Mr Praveen Mittal Consultant || United Health Group MNC EDITOR Name - Smt Sweety Jain Consultant||SUMEG FINANCIAL SERVICES PVT.LTD. EDITOR Name - Mr. Siddharth Dhawan Core Team Member || Legal Education Awareness Foundation 3 www.whiteblacklegal.co.in ISSN: 2581-8503 ABOUT US WHITE BLACK LEGAL is an open access, peer-reviewed and refereed journal provide dedicated to express views on topical legal issues, thereby generating a cross current of ideas on emerging matters. This platform shall also ignite the initiative and desire of young law students to contribute in the field of law. The erudite response of legal luminaries shall be solicited to enable readers to explore challenges that lie before law makers, lawyers and the society at large, in the event of the ever changing social, economic and technological scenario. With this thought, we hereby present to you WHITE BLACK LEGAL: THE LAW JOURNAL 4 www.whiteblacklegal.co.in ISSN: 2581-8503 RELIGION AND CENSORSHIP IN INDIA (By - Sakshi Sharma) This article examines the censorship in Indian media on the grounds of religion (hurting religious sentiments, for example) and censorship of religious expression itself. The first part of the article examines the legal framework surrounding this censorship in India. The second part examines some of the extra-legal dimensions of censorship, citing various instances. Religion and freedom of speech share a curious relationship. On one hand every religion requires free media for propagation. On the other, it would seem that once established, these very media are attacked by religion for perceived threat to its stability.Censorship, in every form, like censorship of religious expression in the media, of expression in the media that hurts the religious sentiments of others, of expression in the media that causes religious disharmony, and censorship on account of “blasphemy”. It may be noticed, also, that these categories are not necessarily or always mutually exclusive. Often times, there is some degree of overlap, with one kind of expression giving rise to several kinds of censorship. Again, the concept of censorship is itself not completely unproblematic; as much as censorship may be legal, it may be extra-legal (in this context which would imply social censorship) as well. This means that apart from formal and legalized mechanisms to address any or all of the situations mentioned above, there are also extra-legal, social, at times even executive (governmental) measures that are undertaken without the support or even against the law, to impose censorship on expression. Instances of both legal and extra-legal religious censorship abound in a nation like India, where religion is a very touchy issue. In this paper, an effort has been made to examine the issue of religious censorship, legal and extra-legal, encompassing the various forms of religious censorship outlined above. For this purpose, a simple split is introduced into the categorization. Legal censorship of expression is dealt with separately, as is extra-legal censorship. The next level of classification that is extrapolated onto this is of censorship of religious expression and blasphemy, and censorship in the media that causes religious disharmony or hurts the religious sentiments of others. However, a word of caution is added, that the distinctions are regularly blurred, religion being the volatile subject that it is. I. The Legal Framework of Censorship in India In India, legal controls cannot be placed on religious expression in the media or blasphemy per se. This is because the fundamental right to freedom of speech and expression, having its root in the Constitution, cannot be restricted otherwise than as provided under the Constitution 5 www.whiteblacklegal.co.in ISSN: 2581-8503 itself. The various laws referred to here that place restrictions on expression on religious grounds take root from the Constitutional permission to impose some restrictions on free speech. (i) Restrictions on Expression in Cinema and Television In the case of motion pictures, the Cinematograph Act, 1952, imposes certain restrictions on exhibition of films, etc. and authorizes the establishment of the Central Board of Film Censors (“CBFC”) which previews films and certifies them according to certain guidelines. They may be certified as being fit for unrestricted viewing (“U” Certificate), for partially restricted viewing (“U/A” Certificate), for restricted viewing (“A” Certificate) or be denied such certification.1 Section 5B lists the principles for certifying films that are to be kept in mind by the censors before granting a film a certificate. This provision mainly repeats the grounds for imposition of reasonable restrictions detailed under Article 19(2). Section 5E, an important provision, allows for revocation of a film’s certificate by the Central Government. The Central Government may revoke the certificate by publishing a notification to that effect, if it is of the opinion that the film for which the certificate has been granted is being exhibited in any form other than that in which it was to be exhibited, or the certificate granted is violative of any of the provisions of Part II of the Act, which encompasses the aforementioned provisions and provides for certification of films for public exhibition. This would imply that the Central Government is given the executive power to revoke a certificate granted by an expert body (i.e. the CBFC) if it is of the opinion that a certificate granted would justify restrictions on any of the grounds under Article 19(2). Section 6 contains the revisional powers of the Central Government,2 and allows for the suspension of the certificate granted to a film. Further, under Section 13, the Central Government may suspend the screening of a film in any Union Territory if of the opinion that it will lead to a breach of peace. Several States have enacted State legislations along the lines of this Act as well, and these legislations provide for the suspension of the screening of films in a manner similar to Section 13. Religion being such a sensitive issue in India, this provision could easily be invoked to effect religious censorship of films 1 See also, Sections 3, 4 of the Cinematograph Act, 1956. Under Section 5C of the Act, a person dissatisfied with the categorization of the film and the certificate granted can appeal to the Appellate Tribunal, constituted under Section 5D. 2 It is to be noted, however, that the revisional powers of the Government over the Tribunal set up under the Act have been held to be invalid in Union of India v. K.M. Shankarappa, (2001) 1 S.C.C. 582 6 www.whiteblacklegal.co.in ISSN: 2581-8503 where the same could be justified on the ground that not doing so would lead to a breach of peace. As regards cable television, the provisions of the Cable Television Networks (Regulation) Act, 1995 apply. A joint reading of the Cable Television Networks (Regulation) Act, 1995 and the Programme and Advertising Codes under Rules 6 and 7 of the Cable Television Network Rules, 1994 places restrictions on the matter aired by operators of cable television. Under Section 19 of the Act, an authorized officer may prohibit the transmitting or re-transmitting of any programme or channel which is either not in conformity with the Programme Code or the Advertising Code, or is likely to promote “…on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities or which is likely to disturb the public tranquility…” Similarly, under Section 20, the Central Government may regulate or prohibit the transmission or retransmission of any channel or programme. These restrictions are imposed on grounds that resemble those permissible under Article 19(2)3 and also those relating to non-conformity with the Programme and Advertising Code. However, it would seem that these rules and regulations are not strictly implemented. On paper though, there exists law which permits the imposition of restrictions on programmes and advertisements and these laws, so long as the restrictions imposed were reasonable and under one of the permissible grounds (which are mirrored in such laws as grounds for imposing restrictions), would not be unconstitutional. An important instance of religious censorship of media was that of the banning of the film “The Da Vinci Code” in several States throughout India and abroad. The film was based on a book of the same name written by Dan Brown, which wove a fictitious plot around the Holy Grail and the life of Jesus Christ, suggesting that the Holy Grail actually referred to Mary Magdalene and that the Church was involved in a centuries-long attempt to conceal the existence of the lineage of Jesus and Mary Magdalene.