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K.A. Abbas v. Union of India

Arushi Lamba 4 years ago

Name of K.A. Abbas v. The Union of India

the case & Anr

Citation 1971 AIR 481, 1971 SCR (2) 446

Year of the
24th September 1970
case

Appellant K.A. Abbas

Respondent The Union of India & Anr

Chief Justice Hidayatullah,

Bench Justice Shelat, Mitter,
Vidyialingam, and Ray.

Acts The Constitution of India, The

Involved Cinemograph Act 1952.

Article 19(1) (a) of Indian

Important
Constitution, Section 5-B (2) of
sections
The Cinemograph Act 1952.

Abstract-

Freedom of Speech and Expression is one of the

most sacrosanct rights guaranteed by the
Constitution of India. It is also regarded as an
integral concept in most of the modern
democracies across the globe. Cinema is a mode of
expression of thoughts, ideas, and views, and
being the part of Article 19(1)(a) of the Indian
Constitution it enjoys protection as conferred.
However, the reasonable restrictions as imposed
on Article 19(1)(a) can similarly be imposed on the
mode of expression – Cinema. Restrictions on
Cinema are articulated under The Cinematograph
Act under which all the guidelines of certification
as well as provisions to avoid arbitrariness are
mentioned.

In India, Cinema is regulated by The

Cinematograph Act, and a regulatory body called
The Central Board of Film Certification is set up
according to the Act which primarily takes the task
of certification of films for public exhibition. Thus,
it can be said a body of rules and regulations are
set but to date, the arbitrariness and impartiality
prevail, and the judiciary here plays as a legal
protector to uphold the rule of law and provide
justice.

Introduction

Cinema is known as a creative and artistic form of

expression of one’s views, ideas, opinions, and
thoughts which can be inspired by reality, fictional
thoughts, musical scenarios, to entertain and
enchant. It was been one of the potent tools of
expression for a long time ago. Cinema has always
acted as a medium through which a larger
scenario of societal lives has been depicted on the
screen. It has also acted as a source of inspiration
and introspection at the same time. Cinema as a
perfect tool for the change in society has acted as a
medium to promote positive and required change
in society.

However, being one of the major sources of

entertainment as well as a medium of expression
of thoughts and views, Cinema like any other
freedom of speech and expression is limited or
kept under check through reasonable restrictions.
Cinema has undoubtedly contributed to the social
and cultural development of India. Press and
Cinema as termed to be the medium of
communication and both are considered at the
status so far, the constitutional freedom of speech
and expression is concerned.

However, both of these mediums are not absolute

and reasonable restrictions can be imposed. For
this purpose, we have the Cinematograph Act.
1952. The Act provides for the establishment of a
‘Central Board of Film Certification’ as a
regulatory body in India to issue certificates to the
makers of the films.

K.A. Abbas v. Union of India is the first case

where the question relating to the censorship of
films arises. In this case, the Supreme Court
considered an important question relating to the
pre-censorship of films concerning the
fundamental right of freedom of speech and
expression conferred by Article 19(1) of the Indian
Constitution.

This case analysis shall outline the background

and major facts of the landmark case of K.A.
Abbas v. Union of India, proceeding with
highlighting the issues involved, related
provisions, cases referred and, in the end, shall
discuss the final verdict and concepts that gained
importance because of this judgment.

Background of The Case

In different countries, films are censored to

monitor the different social, economic as well as
political issues it can create which may promote or
spread hatred to masses. In India, under the
Cinematograph Act of 1952, there is very little
scope of censorship but the censorship that is
permitted to safeguard interests at large is only
done if they fall under the specific conditions of
reasonable restrictions.

This case involves the petition of the appellant

under Article 32 of the Constitution of India for
the enforcement of Fundamental Rights. The
Petitioner challenges the rules prescribed Central
Government under part 11 of the Cinematograph
Act of 1952 as unconstitutional and void.
Petitioner asks for a writ of mandamus or any
appropriate writ, direction, or order against the
deletion of certain shots from the documentary
film.

Facts

Khwaja Ahmad Abbas, a Bollywood director was

also a member of the GD Khosla Committee on
Film Censorship, 1969. His movie, A Tale of Four
Cities, better known as Char Sheher Ek Kahaani
was based on the contrasting lifestyles in four of
the most prominent cities of the country at the
time, Bombay, Calcutta, Delhi, and Madras.

The movie tested the Censorship Committee’s

political liberalist claims along with creating a
shock wave in the judiciary by questioning the
relationship between fundamental rights and the
Cinematograph Act, 1952. The film had scenes
portraying the red-light districts in Bombay which
proved to be the most problematic for the
Censorship Board and the Judiciary. The director
was adamant that the scenes had to be shown, at
least with a ‘U’ certificate, if not without any
restrictions at all.

The Censor Board’s Examining Committee

proposed that a ‘U’ certificate be granted only if
the public viewing was restricted to an audience of
just adults. An appeal was filed thereafter, to
which the court responded with an order
recommending a ‘U’ certificate if some scenes
from the red-light area, which depicted immoral
trafficking, economic exploitation, and
prostitution, were cut.

The petitioner filed the present petition

contending that his freedom of speech and
expression was denied, that the provisions of the
Cinematograph Act, 1952 were unconstitutional
and void and that he was denied the ‘U’ certificate
that he was entitled to. Meanwhile, the Central
Government agreed to grant the ‘U’ certificate
without demanding any cuts to be made in the
film.

The petitioner then requested to be allowed to

amend his petition in light of the altered situation,
which was accepted by the court. The petitioner
then contended that the provisions of the Act and
the power is given to various authorities and
bodies under the Act were vague, arbitrary, and
indefinite and also questioned the purpose of pre-
censorship.

Issues

Whether pre-censorship by itself offend the

freedom of speech and expression or not?
Even if there is a legitimate restraint on
freedom, it must be exercised within the definite
principles and no scope of arbitrariness or not?

Related provisions

Cinematograph Act, 1952

“5B. (1) A film shall not be certified for public

exhibition if, in the opinion of the authority
competent to grant the certificate, the film or any
part of it is against the interests of the sovereignty
and integrity of India the security of the State,
friendly relations with foreign States, public order,
decency or morality, or involves defamation or
contempt of court or is likely to incite the
commission of any offense.

(2) Subject to the provisions contained in sub-

section (1), the Central Government may issue
such directions as it may think fit setting out the
principles which shall guide the authority
competent to grant certificates under this Act in
sanctioning films for public exhibition.”

This provision gave the Central Government the

power to issue any such directions as it may think
fit to preserve “… decency and morality.”. In
contrast to the purpose of the provision, in the
present case, the Central Government in the
exercise of its power under section 5B of the Act,
issued orders on the 3rd July 1969 further
restricting granting of the ‘U’ certificate than was
necessary. The general principles which are stated
in the directions given under section 5B (2) seek to
do no more than restate the permissible
restrictions as stated in clause 2 of Article 19 of the
Constitution.

Article 19 of Constitution of India

Article 19(1)(a) of Constitution of India, it

mentions that all the citizens of India must have
the freedom of speech and expression, however,
under clause 4 of Article 19 of Indian Constitution,
reasonable restrictions can be imposed in the
interest of public order or morality or sovereignty
and integrity of India. In the instant case, the
petitioner argues whether the restrictions can be
imposed by granting of ‘A’ certificate to the film
and it was held by the Apex court that these
restrictions can be imposed in the interest of
public order, peace, and security.

Related case laws

In the case of Rangarajan v. P.Jagivan

Ram[1], The Supreme Court of India zealously
protected the freedom of expression and
overturned the decision of Madras High Court
which revoked a U certificate awarded to the film
Ore Oru Gramathile on the ground that
government policy reservation system as
portrayed in the film may cause widespread law
and order problem in Tamil Nadu. When the
matter went as an appeal to the Supreme Court,
the apex court demolished the state argument and
stated that “The State must protect the freedom of
expression since it is a liberty guaranteed against
the State. The State cannot plead its inability to
handle the hostile audience problem”.[2]

In another case of Bobby Art International v.

Om Pal Singh Hoon[3], the petitioner filed a
petition asking the court to quash the certificate of
the exhibition for the screening of the film ‘Bandit
Queen’ and also to restrain its exhibition within
India and pleaded that this film depicts the life
story of Phoolan Devi and the way the rape scenes
are depicted in this film it is a slur to womanhood
in India and also contended that depiction of
Gujjar community promoted moral depravity to a
particular community. It was held by the apex
court that the decision of Tribunal in granting of
‘A’ certificate to the film is valid and stated that
“The film must be judged in its entirety from the
point of overall impact. Where the theme of the
film is to condemn degradation, violence, and rape
on women, scenes of nudity and rape and use of
expletives to advance the message intended by the
film by arousing a sense of revulsion against the
perpetrators and pity for the victim is
permissible”.[4]

In Shree Raghavendra Films v. Government

of Andhra Pradesh[5], the exhibition of the
film ‘Bombay’ in its Telugu version was suspended
in the exercise of powers under section 8(1) of the
A.P Cinemas Regulation Act, 1955 despite being
certified by the Censor Board for the unrestricted
exhibition. The suspension was imposed because
the film may hurt sentiments of certain
communities however, the court discovered that
the authorities who imposed those suspensions
did not even watch the film and thus the court
quashed this arbitrary suspension.

In a recent case of Phantom Films Pvt. Ltd

and Anr v. The Central Board of
Certification[6] involving the controversy of the
film ‘Udta Punjab’ where the Central Board of
Film Certification refused to certify the film
because it promotes and highlights the drug
menace in the state of Punjab and in addition to
that suggested cut of 13 major scenes. However,
the Court observed and criticized the Central
Board of Film Certification for its conduct and
stated that the Board is not necessarily entitled to
censor the films. The word ‘censor’ is not
mentioned in The Cinematograph Act and that the
board can make changes in the film and Central
Board of Film Certification but should exercise its
power in consonance with the Constitutional
provisions and Courts orders.

The court stated that “The ultimate censorious

power over the censors belongs to the people and
by indifference, laxity or abetment, pictures which
pollute public morals are liberally certificated, the
legislation, meant by Parliament to protect
people’s good morals, maybe sabotaged by
statutory enemies within. Corruption at that level
must be stamped out. And the Board, alive to its
public duty, shall not play to the gallery; nor shall
it restrain aesthetic expression and progressive art
through obsolete norms and grandma inhibitions
when the word is wheeling forward to glimpse the
beauty of creation in its myriad manifestations
and liberal horizons. A happy balance is to “….
consider, on the one hand, the number of readers
they believe would tend to be depraved and
corrupted by the book, the strength of the
tendency to deprave and corrupt, and the nature
of the depravity on corruption; on the other hand,
they should assess the strength of the literary,
sociological and ethical merit which they consider
the book to possess. They should then weigh up all
these factors and decide whether on balance the
publication is proved to be justified as being for
the public good.”[7] thus, the court held that the
film must be given ‘A’ certificate.

Judgment –

As held in the landmark case of K. A. Abbas v.

Union of India, Chief Justice Hidayatullah,
Justice Shelat, Mitter, Vidyialingam and Ray
delivered their judgment and stated that court
does not accept the distinction between pre-
censorship and censorship in general and
observed that both are to be governed by the
standard of reasonable restrictions within the
Article 19(1) of Indian Constitution.

The Constitution has recognized that freedom of

speech and expression is not an absolute right and
reasonable restrictions can be imposed. Pre-
Censorship was permitted under the Constitution
for public order and to uphold the rule of law. The
Judiciary is regarded as a legal protector in
preserving public interest and ensure justice.

Concerning the issue of insufficient guidelines in

the Act, the court held that guidelines as provided
within Article 19(1) of the Indian Constitution are
clearly stated and sufficient. But the distinction
between the artistic expression and non-artistic
expression in assessing obscenity needs better
clarity. The Court observed he cannot be the whole
reason to strike down the provisions of the Act.

Thus, the Apex Court upheld the restrictions on

public exhibition under the Cinematograph Act,
1952 and thereby rejected the petition that
challenged the power of censorship and stated that
pre-censorship fell under the reasonable
restrictions permitted under freedom of speech
and expression and that the Act provides the
means and provisions to avoid arbitrariness in the
exercise of the powers conferred.

Concepts Highlighted

Freedom of Speech and Expression–

Cinema is an instrument of expression of ideas
and thoughts and this should not be restricted
from any kind of censorship. Restriction of any
kind must not infringe on the basic human right
of an individual to express their views.
Reasonable Restrictions– However, at the
same time one must keep in mind that with
rights conferred, the duty to practice those
rights is on the same individuals. If the peace
and law and order situation is disturbed or
harmed by one’s expression of thoughts,
Restrictions can be imposed.
A Balanced Approach– Henceforth, to
maintain a balance between the right to
freedom of speech and expression and the duty
to maintain peace and security in the nation. A
balanced approach by the authorities should be
applied. In case of reviewing a film or giving a
certification of approval, the authorities should
strike a balance of harmony where the right of
freedom of speech and expression, as well as a
sense of peace and security, prevails.
The Supremacy of Constitution– It has
been stated that to curb the arbitrariness and
safeguards the rights, the Constitution of India
is sufficient, absolute, and supreme to ensure
justice and impartiality.

References

http://docs.manupatra.in/newsline/Articles/Uplo
ad/AAA76064-887D-43A3-8EFB-
A11D35C73C2F.pdf

http://www.legalserviceindia.com/legal/Article-
351-censorship-of-
films.html#:~:text=A.,any%20other%20product%
20of%20art.

[1] (1989) 2 S.C.C. 574.

[2] Ibid.

[3] (1996) 4 SCC 1.

[4] Ibid.

[5] 1995 (2) ALD 81

[6] (2016) FL SCC 67.

[7] Ibid.

Categories: Constitutional Law, Fundamental Rights,

Uncategorized

Tags: Censor, cinematograph act, Movies

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