India became a democratic republic on 26 January, 1950 and the world’s lengthiest and the bulkiest handwritten constitution was brought into power. The Constitution of India adopted various provisions from various countries and one such provision adopted from the constitution of the United States of America, being the Fundamental Rights guaranteed under Part III of the Constitution of India. There are mainly six Fundamental Rights guaranteed to the citizens of India. Article 19(1) guarantees six rights within itself i.e. from ‘a’ to ‘g’ whereby the sub-clause “f” has been omitted by the forty-fourth Amendment, 1978. Among these is the Fundamental Right guaranteed to the citizens of India under Article 19(1) (a) i.e. the right to freedom of speech and expression. This right under Article 19(1) (a) is subjected to reasonable restriction under Article 19(2) of the Constitution of India. This implies that the State can impose certain restrictions that must hold a valid reasonability, on this fundamental right.
The freedom of speech and expression is a fundamental right and the citizen of the country has the right to speak and express himself through his art and film making is one such art. The Indian is more than a century old and has transformed tremendously in every aspect. This art has proven to be the most loved and the most influential to the citizens. The technological advancements have provided this art form a new platform i.e., the internet in the form of Netflix, YouTube, Amazon Prime, Alt Balaji, and VB on Web etc. The content on these platforms is available to anyone who uses these platforms irrespective of their ages. These platforms have become very popular in the contemporary Indian society, and are most trending platforms which have turned out to be a huge source of income to the producers.
Film making is considered as an art form in the country and the directors and producers have the right get it released and get it exhibited to the public at large. This right of the directors and producers is guaranteed to them under Article 19(1) (a) of the Constitution of India. The film-makers of the country have found films as a platform to portrait various sensitive issues to be exhibited in front of the citizens. They have initiated to use abusive language, sexual content, and violence so to bring out the true essence of the theme of the film and make it more impactful. The Supreme Court has also aided the film-makers to use them in their films in order to make the film more influential via the case of Bobby Art International v Om Pal Singh Hoon. In this case the movie the movie Bandit Queen was allow to be exhibited to the public at large and the right of freedom of speech and expression was guarded.
question that prevails is that “to what extent the liberty can be given to
protect the fundamental right of speech and expression and what restrictions
can be called reasonable?” The body that regulates the guidelines for film
making and scrutinizes each film being produced in the country is the Central Board
of Film Certification (CBFC) which functions under the Cinematograph Act, 1952.
Any film not fulfilling the guidelines given under this very act is not given a
certificate and hence that particular film cannot be allowed to be exhibited to
the public at large. If the film-maker is not satisfied with the CBFC’s reasons
to deny the certification, thefilm-maker can approach Film Certification
Appellate Tribunal formed under Section 5 of the Cinematograph Act, 1952 to get
justice and save guard their fundamental right to freedom of speech and
expression guaranteed to them under Article 19(1) (a).
In this era of
internet and with the availability of various platforms on it, the CBFC is
losing its importance to a large extent. Since the Central Board of Film Certification
has no power over the content being exhibited to the public on the internetas
the Cinematograph Act,1952 provides no provisions for the same; the film-makers
use it for their benefit and release their uncertified films over the internet
and the response to a query filed under the RTI Act, 2005 the Ministry of
Information and Broadcasting clarified the same. In case of the film of the
Angry Indian Goddesses, the director of the film upload the part of the film on
the internet which CBFC denied to be exhibited to the public. Thus, this act of
the director is violating the Article 19(2) of the Constitution of India. Such
acts are becoming very common and in the name of the fundamental right to
freedom of speech and expression the film-makers are releasing their
uncertified films over the internet therefore, making CBFC of no importance as
still they are able to exhibit their uncertified films which are denied
certification under Section 5B of the Cinematograph Act, 1952 which is totally
in accordance with Article 19(2) of the Constitution of India. Thus, it is a
clear cut violation of the orders of the statutory body. Hence, a fundamental
right which is also subjected to reasonable restrictions cannot be given more
authority that it may go beyond the
Bobby Art International v Om Pal Singh Hoon 1996 4 SCC 1
With the changing trends, the influence of western culture and with broadening mindset of people in India, film-makers are adding sexual content to their films. The Central Board of Film Certification has also been liberal and allowed such films to be a part of the film and provide them the adequate certificate. But the film-makers nowadays are trying to sell obscenity through their films and are try to make films having a lot of sex scene and nudity i.e. the physical intimacy is the highlight of the film. When the CBFC denies the certification they release it over the internet in the name of their fundamental right. This current scenario is portraying CBFC powerless and weak. This act of the film makers in the name their fundamental right is corrupting the tender minds. The sexual content released through films is accessible by anyone even kids and teens, which corrupts their mind. The online platforms do not follow a strict process and hence can be fooled by anyone and thus the kids and teens get exposure to such sexual content and which in turn crook their mind.
The freedom of speech and expression is indeed a fundamental right but should be in harmony with other statutes as well. The act of the film makers in the name of their fundamental rights i.e. selling of obscenity can be a punishable offence under Section 292 of the Indian Penal Code, 1860 but this Section itself does not mention about the online content. This dearth of law or the inadequacies of the law is setting up the monopoly of these online platforms and the film-makers are able to corrupt young mind in the name of their fundamental right. Since Article 19(2) clearly states that restrictions on Article 19(1) (a) can be imposed if the right is against the morality of the country and the corruption of young minds are very much against the morality of the country. Hence, there must be a scrutinized scope of the fundamental right to freedom of speech and expression in the field of film-making.
There have been various scenarios where the rape culprits were found to commit rape after watching porn or the extreme physical intimacy depicted in the films which the film-makers release on the internet mention the release as their fundamental right. Thus, this extravagant liberty given to the film-makers or the misuse of the loop hole in the statutes by the film-makers is turning out to be anti-society and somewhat aiding to rape culture as well. Thus, the right to freedom of speech and expression of the film-makers is eating up the morality of the society. Therefore, it can be said that, the guarding of the fundamental rights is must but not if they are going against the society in any form.
Thus, it can be concluded that the legislature needs to provide the Central Board of Film Certification the power to scrutinize the content over the internet so that reasonable restriction can be imposed upon the right to freedom of speech and expression of the film-makers. This will strengthen the statutory body and the fundamental right guaranteed under Article 19(1) (a) can be regulated in accordance with Article 19(2) of the Constitution of India. The main aim of the of the legislature should not be to over restrict the fundamental right to freedom of speech and expression of the film-makers but to make laws or to amend lawsin such a way that they maintain a harmony between every statutes i.e. not law should establish supremacy over other unlessstated in that very statute for the same. Hence, the legislature must act sooner as the situations are very much alarming and must counter attack the monopoly and bring it down that is being established by the film makers in the name of their fundamental right to freedom of speech and expression but in this process the legislature should not unduly curb the fundamental right of the film-makers but should just ensure a system of check and balance between the liberty given upon the fundamental rights and the reasonable restrictions if they are subjected to them.
Submitted by: Mudit Saxena