FILM CENSORSHIP IN INDIA : A "REASONABLE RESTRICTION" ON FREEDOM OF SPEECH

AND EXPRESSION
Author(s): Bruce Michael Boyd
Source: Journal of the Indian Law Institute , October-December 1972, Vol. 14, No. 4
(October-December 1972), pp. 501-561
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43950156

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 FILM CENSORSHIP IN INDIA : A
'REASONABLE RESTRICTION" ON FREEDOM OF
SPEECH AND EXPRESSION*

Bruce Michael Boyd**

It is a paradox of the Indian character that it simultaneously

exhibits mutually contradictory attitudes in almost every
important sphere of life, be it foreign policy, economic plann-
ing, education or the censorship of literature and the arts

It can respect naked sddhus , boast of the erotic wi

Vatsyayana, advertise the temple art of Khajuraho
Konarak... but it must demand a ban on literary cla
the ground that they are obscene. It can worship sh
most terrible... member of the divine trinity throu
frontest possible phallic symbol and yet see incipien
disaster in the bright colors or the tight fit of feminine ap
The Indian mind can harbour such blatant contradictions and
even offer sophisticated rationalizations to explain them away.
There must be something basically wrong with it.1

DESPITE the claim of some of its proponēts to the contrary,2 it is well

established that film censorship in India is one of the strictest in the world.3
This, in a country which professes to grant to its citizens the Fundamental
Right to "freedom of speech and expression," subject only to "reasonable
restrictions" in the interests of, among other things, the security of the
state, public order, friendly relations with foreign states, and decency or
morality.4

♦The author wishes to express his appreciation to the Law School, University of
California at Berkeley, for fellowship assistance, providing research facilities and invaluable
assistance in preparing this paper.
**B.A. (California), Scholar under Berkeley Professional Studies Programme in
India, 1971-72.
1. See Introduction in A.B. Shah, The Root of Obscenity V, (1968 ed.).
2. Mr. Raj Bahadur, Minister of Information and Broadcasting, said in
1966 that the government would "continue a liberal censorship " in the area of licensing
films for public exhibition in India. Journal of the Film Industry , Feb. 25, 1966, at 3,
quoted in N. Hunnings, Film Cencsors and the Ļaw 18 (1967) (emphaisis added).
3. N. Hunnings, supra note 2 at 226-27.
4. Art. 19(1) (a) of the Indian Constitution provides that "(1) all citizens shall have
the right - (a) to freedom of speech and expression

Nothing in sub-clause (a) of clause (1) shall affect the operation of

or prevent the State from making any law, in so far as such law i
restrictions on the exercise of the right conferxed by the said sub-clau
of the sovereignty and integrity of India or the security of the State,
with foreign States, public order, decency or morality or in relatio
court, defamation or incitement to an offence. (Emphasis added).

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502 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14 : 4

Nevertheless, it was only up until recently that commentators, both

within and without the government,5 and the courts6 have begun to seriously
question both the wisdom and the constitutionality of the prevailing scheme
for film censorship in India. The potential changes in the substance and
manner of film censorship that may occur as a result of this period of legal
and extralegal testing, however, are significant for several reasons. First,
in light of the vast size of the Indian motion picture industry on even a
world-wide scale,7 it seems clear that any change in the latitude of expres-
sion now granted to film producers will have a liberalizing or alternatively,

5. See A.G. Noorani, India's Constitution and Politics 212-16 (1970). The Indian
Government, under the aegis of the Ministry of Information and Broadcasting, set up a
committee headed by Hon'ble G.D. Khosla former Chief Justice of the Punjab High
Court, to "enquire into the working of the existing procedures for certification of cinema-
tograph films for public éxhibiton in India and allied matters . . .."(Ministry of Information
and Broadcasting, Resolution No. 14/35/64-FC, March 28, 1968). Among other things,
the Committee was requested to (1) "study the effect of films exhibited in public on the
people in the context of changing needs of society," and (2) "enquire into the state of films
in India in regard to their artistic content and healthy mass appeal in relation to the existing
regulatory procedures." On the basis of these studies, the committee was directed to
recommend measures for improving the existing film censorship law and related procedures.
The following year the committee submitted its report and recommendations, viz., Ministry
of Information and Broadcasting, Report of the Enquiry Committee on Film Censorship
(1969) [hereinafter cited as Khosla Report ]. For a discussion of the specific recommen-
dations of the committee see Part III B infra.
The Indian press has not spared any criticism of the system for film censorship and
lately has registered a series of complaints against the tardiness of the government in imple-
menting tne recommendations of the Khosla Committee. See The Statesman , Dec. 29,
1971 at p. 16; Editorial, The Indian Film The Statesman , Jan 21, 1972 at p. 8. Ąmladi,
From 'Fillums' to Films : Interview with Mrs. Nandini Satpathy, Minister of State for
Information and Broadcasting The Times of India , Dec. 5, 1971 at p. 6; The Times of India,
Mar. 9, 1972 at p. 6. There has been a series of particularly vitriolic denunciations of the
Film Censorship Boards and film censorship in general in the Indian weekly supplement
Blitz. See Jrevelyan, the Censor-Uncensored : No Sex, No problems Blitz , Sept. 18, 1971
at p. 15; Jrevelyan, The Censor-Uncensored. .. .2: Era of Successful Sex Films Blitz , Nov.
25, 1971 at p. 19; Krishna, Indian Noncensor 1: Obsession with Sex Blitz, Oct. 30, 1971
at p. 21; Krishna, Indian Noncensor 2: Censor Bay "Indira" Blitz , Nov 6, 1971 at p.
15; Krishna, Indian Noncensor 3: No "Bosom" Friends Blitz , Nov. 13, 1971 at p. 21 ;
Krishna, Indian Noncensor 4: Mohabbat Mrick Blitz , Nov. 20, 1971 at p. 21; Krishna,
Indian Nocensor 5: Censors 'Capers' Blitz., Nov. 27, 1971 at p. 21; Krishna, Indian
Noncensor 6: Censor Board Censured Blitz, Dec. 4, 1971 at p. 19.
6. The first case to come before the Indian Supreme Court challenging the consti-
tutionality of the film censorship system in general and precensorship in particular was
decided only in late 1970. SeeK.A. Abbas v. Union of India, A.I.R. 1971 S.C. 481. For
a detailed discussion of the implications of this case see Part II. infra.
7. Based on 1965 figures, the Khosla Committee pointed that the Indian film industry
was the third largest in the world behind Japan and the United States. The committee
further pointed out that the capital investment in the cinema industry, at that time, was
more than Rs. 84 crores, that the number of workers employed in the industry exceeded 1
lakh that the revenue earned by exhibition of films was approximately Rs. 2 crores per year,
and that nearly 20 lakh people view films every day in India. Khosla Report , supra note
5 at 75. More recently, however, it has been shown that India is now the largest producer
of films in the world, ahead of both Japan and the United States. The industry has grown

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1972] FILM CENSORSHIP IN INDIA 503

chilling effect on the tenor of freedom of speech

in the society as a whole. Indeed, such changes may
territorial importance and effect because of the i
influence of the Indian film industry. Secondly, an
of public expression granted to the film industry
communication will undoubtedly affect in a vital
of modernization and democracy in India. Thus, as A.B. Shah has
written :

[I]f India is to be a modern society, the process of modernization

has to embrace not merely the economy and social institutions,
it must also extend to the sphere of thought, literature and the
arts. Indeed, in the absence of the latter, there is a danger of
this process running up against apparently insuperable obstacles
and thus generating disruptive tensions in the social organism.

In this sense, therefore, it is imperative that India, grappling with the

problems and alternatives posed by increasing modernization, chart a
proper course between the scylla of heavy-handed censorship and the
charibdis of unlimited license of expression. However, the constitutional
parameters of permissible speech and expression in Indian society -
delineated, as they are, in terms of non-mandatory9 "reasonable restrictions"
- provide but scanty guidance for those seeking an equitable and
constructive approach to the question of civil liberties in a developing
society. The burden of developing such an approach, therefore, must
ultimately come to rest on the courts and enlightened governmental officials.
In the area of film censorship, however, the process of weighing new alter-
natives for the old censorship system has just begun; the case for Indian
film censorship is now at the crossroads.
In this light, it will be the objective of this paper to consider and
evaluate possible alternatives to and modifications of the present system
of film censorship in India. In part I of this paper the history of Indian
film censorship and the operation of the current Film Code has been
reviewed. In part II, the question of the constitutionality of the Code
has been discussed in the light of the recent Indian Supreme Court decision

so large that motion pictures bring the state governments in India a total of nearly Rs. 60
crores in entertainment tax alone annually. Editorial, The Indian Film, The Statesman
Jan. 21, 1971 at p. 8. Indian films are also an important source of export trade both in the
West and South-East Asia.
8. See supra note 1 at vi. See also A. Sarkar, The Law and Obscenity 33 (1967).
9. It is not mandatory for the government to impose "reasonable restrictions" on the
right to freedom of speech and expression under any of the grounds mentioned in art. 19(2)
because, by its terms, the provision is permissive and not compulsive, Khosla Report ,
supra note 5 at 109. See generally M.P. Jain, Indian Constitutional Law 522-34 (2nd ed.
1970).

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504 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14:4

in K.A. Abbas v. Union of India 10 and draw upon similar developments in

the film censorship law in the United States. In part III an attempt has
been made to evaluate various other alternatives to film censorship that have
been proposed in India or, alternatively, tried in other countries, namely,
the proposals of the 1968 Khosla Committee on Film Censorship and the
American experience of self-censorship by the motion picture industry.
Lastly, Part III seeks to assess the impact of and need for film censorship
in a developing country such as in India.

I. History of Indian film censorship : from the British raj to the present
film code

A. Film censorship under the British raj

The advent of motion pictures in India began with an exhibition of

the Lumiere cinematograph in 1896 in Bombay.11 With the increasing
popularity of the film medium, cinema halls were consturcted in the major
cities, and travelling showmen brought the new form of entertainment to
many of the rural areas around the turn of the century.12 The films exhibited
during this initial period were exclusively of foreign origin, but in December
of 1912 the first film to be made in India, "Rajah Harischandra," was shown
in Bombay.13 Although the vast majority of motion pictures publically
exhibited in India during this time continued to be of foreign origin,14
the popularity and influence of the film generated a substantial expansion
of the indigenous motion picture industry.15
While censorship of the burgeoning Indian film industry clearly
existed prior to 1918, there is but little information about its precise extent
and nature. Apparently, some form of film censorship was exercised by

10. See supra note 6.

11. P. Shah, The Indian Film 20 (1950). See also E. Barnouw & S. Krishnaswamy,
Indian Film (1963).
12. N. Hunnings, supra note 2 at 223.
13. Motion Picture Society of India, Indian Cinematograph Year Book 1938 at
114 (B. Bharucha ed., 1938). (Like most early Indian films) "Rajah Harishchandra" was
based on a religious or mythological theme, while most of the fimls imported from abroad
usually dealt with simple, noncontroversial subjects such slap-stick comedy or themes of
romance and adventure without any overtones of eroticism. However, during and
after World War I a few films with an apparently erotic content-produced perhaps for the
entertainment of troops found their way into a few cinema houses in India. It is doubtful
whether these latter films in and of themselves, played more than a marginal role in bringing
about the system of film censorship which emerged in India at the end of this period. See
Khosla Report , supra note 5 at 5.
14. Films of a foreign origin accounted for more than 90 per cent of the films publi-
cally exhibited in 1921-22. Government of India, Report of the Indian Cinematograph
Committee 1927-1928, 189 (1928) (hereinafter cited as the 1927-28 Report). This figure
includes twenty-seven cinema houses in Burma.
15. By 1921, for example, the number of cinema houses had increased on 148, and
during the period 1921-22 there were some of sixty-three Indian-produced feature films,
with a total length of 332?228 feet, submitted tp the censor boards. 1927-28 Report at
179, 184.

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 1972] FILM CENSORSHIP IN INDIA 505

voluntary boards in certain random localities, but since no

ship powers had been granted by legislation, the most like
that these boards were in the nature of ad hoc watch comm
function was to enforce the ordinary criminal law,16 par
provisions of the Indian Penal Code which forbade the
obscene matter,17 or matter which might wound religiou
or incite disaffection against the government.19
Film censorship in a formal sense, however, did not com
until the passage of the Cinematograph Act of 1918. 20 Th
in general, that :

[N]o person shall give an exhibition by means of a cinem

elsewhere than in a place licensed under this Act, or oth
than in compliance with any conditions and restrictions
by such license.21

It delegated to the district magistrate in each locality or,

towns, the commissioner of police, the authority to issue
The Act further provided that in the absence of prior cer
proper authority, no film could be publically exhibited in Indi
it empowered the provincial governments to set up author
and certify films destined for public exhibition.24 Pursuant to
tions, the British government established Board of Censo
Calcutta, Madras, and Rangoon in 1920, and later, in 19
These five provincial governments26 all issued rules regulat
tion of films and the provisions to be attached to cine
certificate granted by any of the above Board of Censors w
out British India, but could be suspended and annulled
on the initiative of the provincial government, the distric
alternatively commssioner of police.28

16. N. Hunnings, supra note 2 at 223-24: Khosla Report supra not

supra note 11 at 232. See Anon, Film Censorship in British India 1 In
Cinematography 574 (1929).
17. Indian Penal Code 1860, (hereinafter cited as I.P.C.) ss. 292-94,
18. I.P.C., s. 298.
19. Id, S.124A.
20. Act II of March 6, in (1969) 2 A.I.R. Manual 510. (Hereinafter cited as 1918
Act), (Later amended by the Cinematograph (Amendment) Act (Act XXIII of 1919)
and by the Devolution Act (Act XXXVIII of 1920).
21. 1918 Act., S.3.
22. Id., S.4.
23. Id., s. 5.
24. Id., S.7.
25. N. Hunnings, supra note 2 at 224; P. Shah, supra note 1 1 at 233 ; Khosla Report ,
supra note 5 at 6.
26. Bombay, Bengal, Madras Burma (which was then part of British India), and
Punjab.
27. N. Hunnings, supra note 2 at 224.
28. 1918 Act, s. 7(5) and (6).

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 506 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14 : 4

With respect to the licensing of cinema houses, the primary concern

of the Act was the limited one of ensuring the safety of persons attending
the exhibition of films.29 With respect to the certification of films, how-
ever, it delegated broad discretionary powers to the Boards of Censors, who
had the authority to merely designated a film as "suitable" or "unsuitable"
for public exhibition as they so determined.30 Moreover, the Act failed to
provide guidelines for the benefit of the certifying authorities regarding
the nature of uncertifiable films.
However, the rules regarding certification of films, which were pro-
mulgated by each regional Board of Censors, largely remedied the failure
of the Cinematograph Act to provide guidelines for film censorship. The
Bombay Board of Censors, for example, drew up a list of suggestions and
objectionable scenes in the form of general principles which were then
issued to the inspectors of films.31 These principles were modelled on the
rules of censorship that had governed the operation of the British Board
of Film Censors, and the list of objectionable subjects was almost a
verbatim copy of the fourty-three rules formulated by T.P.Ö. Connor, the
second president of the British Board, in 19 16.32 The principles were
realistic to the extent that they recognized that censorship rules are incapable
of mathematical application; that consistency in the application of rules
is essential, but strictly logical decisions are not always possible; and that
each film must be judged on its own merits.33 The nature of films listed
as liable to objection, however, clearly reflects, the Victorian morality of
that period and the uneasiness of British rule in India. Films liable to
objection included those which extenuated or familiarised young people
with crime, undermind the teachings of morality or showed vice in an

29. Khosla Report, supra note 5 at 6. See also Ministry of Inforamation and
Broadcasting, Report of the Film Enquiry Committee 1951, at 18-19 (1951) [hereinafter
cited as 1951 Report],
30. 1918 Act, s. 6. An applicant for a film certificate could, however, appeal
against the decision of the Board of Censors to the provincial government whose decision
was final. Nonetheless, the discretion exercised by these early boards was considerable.
For example, the film "Orphans of the Storm" was uncertified in various areas when the
censors determined that Indian audiences were too responsive to the scenes of revolution
shown in the film. Another film, "Razia Begum," which was produced in India and con-
cerned a Hindu-Muslim palace romance that had angered the Nizam of Hyderabad, was
uncertified in numerous localities following Muslim protests. Cinematograph Laws
Research Institute, Cinematograph Code 32 (Rama Reddi, ed. 1968).
31. Khosla Report , supra note 5 at 6. The Bengal Board ot Film Censors also drew
up an extensive list of rules to guide film inspectors in censoring motion pictures. Apart
from four general principles covering moral, racial, religious and political ground rules,
the Bengal rules provided that the depiction of the following eight subjects would be
considered undesirable and objectionable : Rape, drawing of young girls as tray, prosti-
tution, feminenudity, scenes showing women in a drunken, state exaggerated scenes of deba-
uchery at cabarets and saloons, scenes based on desecretion of religious places of worship,
and torture or cruelty scenes by Whites versus Blacks or vice versa. Khosla Report at 9.
32. Id . at 6.
33. Bombay Board of Film Censors, General Principles 1-3 (1920), see Khosla
Report .

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 1972] FILM CENSORSHIP IN INDIA 507

attractive form, brought into contempt the instituti

suggested abnormal sexual relations or lowering the s
ties, or exhibited indecorous dress, absolute nudit
or small children) or statues of nude figures in suggest
rules also attempted to stifle any criticise of the Bri
through the medium of motion pictures by providing
films would be open to objection : those which -

( d ) bring into contempt public characters actin

soldiers wearing His Majesty's uniforms, ministe
ministers of the crown, ambassadors and official
of foreign nations, judges, the police, civil servan
ment, etc. ;

♦ * ♦ *

(/) are c
disconte
conditio
that res
( g ) are
ment or

Films "c
member
the gene
were like
treatmen
suggesti
depictin
figures,"
repetitive
ted by T
above ru
Film Code.38
Despite the imposition of a formal system of film censorship, the
Indian motion picture industry continued to expand, and in the process
began to diversify the nature and theme of films distributed for public

34. See general principle 5 (ö)-(c); in id. at 6-7.

35. See general principle 5 (d), (/), and (g) in id. at 7.
36. See general principle (5 ce).
37. See general principle 11 and following list in Id ., at 7-8.
38. The fact that censorship rules, formulated nearly sixty years ago, are still
being applied to modern-day films may cast some doubt on the "reasonableness" of the
restriction that they impose on the right to freedom of speech and expression, guaranteed
by Art. 19(1) (a) of the Indian Constitution. See text accompanying notes 216-26 infra .
See also Khosla Report at 9.

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 508 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14 :4

exhibition.39 Accompanying this expansion in the nature and quantity

of Indian-produced motion pictures, however, came an increasing number
of complaints, from both the British and the Indian communities, concern-
ing the alleged leniency of the various film censorship boards. The British,
apparently, were concerned that many of the films imported from the west
and their Indian-produced counterparts unfairly depicted a tainted and
derogatory image of western life and morals, which they argued, would
lower the esteem of British rule in India. Indians, on the other hand,
complained about the alleged deteriorating morals depicted in Indian films40
The natural focus of their complaints was, of course, the film censorship
authorities.
In response to this criticism, the government in 1927 appointed the
Indian Cinematograph Committee to examine the organisation, principles
and methods of film censorship in India. After examining a great number
of witnesses and films, and the various methods of film censorship under
the provincial governments, the committee concluded that it was

without exception satisfied that the overwhelming majority of

films certified for public exhibition in no way tend to demoralise
the Indian public, or to bring Western civilization into contempt.41

Although the committee rejected the allegation that the multiplicity of

censorship boards among the five provinces resulted in the application of
different review standards to films,42 it nevertheless recommended the
creation of a Central Board of Censors for the whole of British India, which
would consist of a chairman and seven, or at most nine, additional members,
a majority of whom should be non-officials. Along these lines, it further
suggested that the motion picture industry should be associated with the
censorship procedure in an honorary and advisory capacity.43 The
government, however, took no immediate action on the committee's
recommendations, and it was not until after much further agitation that
officials finally put the suggestions into effect in 1949.44

39. By the year 1927 there were 346 cinema houses in India and Burma of which
309 were permanent structures with a total seating capacity of 222,655 persons. During
the period 1927-28, the film censorship authorities examined 1,590 films which had a total
length of 5,804,904 feet. Out of this total, the proportion of the Indian-made films increased
to 15.26 per cent (161 films with a total length of 886,477 feet). 1927-28 Report , supra note
14 at 179-85. In terms of diversion of both the industry and the movie-going public up
until about 1920, were succeeded by a variety of new film motifs including costume
melodramas, "stunt" films, and so-called "social films" which sought to deal with problems
of modern life. N. Hunnings, supra note 2 at 225; Khosla Report at 12.
40. See Khosla Report at 9-lz.
41 . 1927-28 Report , supra note 14 at 111.
42. The committee pointed out that less than 31 out oi the 13,000 ñlm reviewed by
the various boards had been passed and then subsequently banned in another province.
Id. at 121.
43. Ibid. For a summary of the committee s recommendations, see Khosla Report
at 12-14; 1951 Report , supra note 29 at 9-10.
44. N. Hunnings, supra note 2 at 225.

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 1972] film censorship in ínďía sto

Apart from the continued expansion of the indigenou

industry,45 very few significant changes occurred in th
film censorship during the succeeding decades up to the
ence.46 It was only after the accession to power of the
1946 that the government began to formulate the polici
organizations to determine the scope and direction of m
ship in India.

B. Film censorship after Independence

The first noteworthy change in Indian film censors

after Independence transpired in 1948 when the Board o
Bombay and Madras each published a so-called "Production Code,"
which set forth a list of suggestions to motion picture producers for guidance
in the production of feature films.47 The Code was purportedly drawn
up with a view to ensuring that the cinema plays its proper role in the
building of a healthy national life.48 The Bombay Home Minister, who
had agitated for a measure such as a Production Code, further suggested
that film scripts be submitted to the censorship authorities prior to the
production.49 Undoubtedly recognizing the insidious and veiled implica-
tions of these attempts at direct and indirect censorship, the film industry
responded by rejecting outright the proposal for prior submission of scripts
and by according only tacit recognition to the suggestions of the Produc-
tion Code.50

45. By 1939 there were 1,265 permanent cinema houses in India and the annual
production of the Indian film industry reached approximately 200 feature films. In 1931,
the first Indian sound film "Alam "Ara" was produced, and subsequently the industry
completely converted to sound films by 1935. The production of sound pictures rose from
28 in 1931 to a peak of 233 in 1935, but production levelled off thereafter and stabilized at
about 170 films per year. 1951 Report , supra note 29 at 11.
46. In 1933, following the protests by the Muslim community, a Muslim was appointed
to each of the Board of Censors. In 1935, changes in the constitution made the "san-
ctioning of cinematograph films for exhibition," joint responsibility of the central and
provincial governments, thus paving the way for later centralization of censorship autho-
rity. N. Hunnings, supra note 2 at 226. War-time shortages and the increase in propa-
ganda films during this period also affected the licensing of films in India. See 1951 Report ,
supra note 29 at 12.
47. Khosla Report at 14. The Bombay Code is reprinted in 1951 Report , supra
note 29 at 294-97.
48. P. Shah, supra note 11 at 245. It should be pointed out that the Production
codes, insofar as they were aimed at film producers in an attempt to mould the contents of
proposed films rather than at the censors whose function was certification of already made
films, were more in the nature of indirect or what may be called "persuasive" censorship
than the official regulatory apparatus which imposed a more direct form of film censor ,
ship. See N. Hunnings, supra note 3 at 227.
49. P. Shah, supra note 11 at 244.
50. See Khosla Report at 14. The censorship authorities, however, continued to
pursue their task with relentless zeal during this period. For example, from 1943 to 1948
the Bombay Board of Film Censors ordered that 705 films be modified before receiving
certification. In the first half of 1949 alone, the Board ordered cuts in 242 films as a

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510 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol.14: 4

The following year, however, witnessed several legislative modifica-

tions of the then existing administrative structure and nature of film censor-
ship, which had been framed under the provisions of the 1918 Cinematograph
Act. The first measure, the Cinematograph (Amendment) Act of 1949, 61
created two categories of censorships certificate in place of the previous
"suitable for public exhibition" classification : an "A" certificate which
restricted the film to adults above the age of eighteen years; anda "U"
certificate which meant the film was "suitable for unrestricted public
exhibition."52 This was the first use of an age classification system for film
censorship in India.63 The Act further provided that if a person was
aggrieved by a decision of the censor board in granting an "A" certificate
to his film he could, within thirty days, appeal to the provincial government,
which then had the option of rejecting the appeal, or, on further considera-
tion, issuing a "U" certificate in place of the "A" one.54
The Cinematograph (Second Amendment) Act of 194955 finally imple-
mented the suggestion of the 1927-28 Indian Cinematograph Committee
for a Central Board of Film Censors. Under the provisions of the new
Act, the Central Board relegated to itself the powers of the previous pro-
vincial boards, but retained the latter as regional sub-committees for the
purpose of viewing new films.56 It seems clear that the legislature had
become by this point, sufficiently concerned about the discrepancies in the
certification of films among the various censorship boards to make a

condition of certification. 1951 Report , supra note 29 at 306. Many films failed to receive
certification by the Board for the most seemingly arbitrary and subjective reasons. The
Film "Jalim Joli", for example, was rejected because the censors concluded that the
"central idea" of the film was "objectionable," "Loves of Carmen", was also denied certi-
fication because "it was highly sexy and of a low moral tone" ; "The Guilty" was banned
because "it was full of drinking scenes from

showing murder without an (sic) entertainment value"; and "sleep

rejected because of its "sordid theme." 1951 Report, supra note 29 a
Board of Film Censor even surpassed the record of the Bombay Bo
scene cuts or modification in over 1912 films between the years 19
counterpart, the Bengal Board also proffered vague, pejorative epithet
ing and repulsive", "distasteful" "suggestive", and "vulgar" as rea
deletions. Id. at 309.

51. Act 39 of 1949 (May 1, 1949), Amending the Cinematograph Act of 1918,
[hereinafter cited as First Amendment Act]
52. First Aemndment Act, s.4, amending s. 7 of the 1918 Cinematograph Act.
53. N. Hunnings, granóte 2 at 228. Under the 1918 Act the censorship authorities
were not empowered to restrict the exhibition of films to a particular class of persons. In
order to prevent the unrestricted exhibition of unsuitable films to young persons of an
impressionable age, the legislature came up with the idea of an age classification system.
See Objects and Reasons, Gazette of India , part V, Sept. 11, 1948, at 653.
54. First Amendment Act, s. 4(iii), amending sub-section(2) of s. 7 of the 1918 Act.
55. Act 62 of 1949 (Dec. 26, 1949), Amending the Cinematograph Act of 1918.
[hereinafter cited as Second Amendment Act],
56. Second Amendment Act, ss. 3-9.

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 1972] FILM CENSORSHIP IN INDIA 511

positive effort at centralization of authority.57

Two years later, in 1951, the Film Enquiry Committee,
by the government in 1949, 58 issued its report on the then c
the Indian motion picture industry.59 While the primary focu
was on technical matters concerning the film industry itse
did make some far-reaching recommendations regarding
of films in India. In the first place, the committee recom
government should establish a statutory body namely th
of India. Endowed with the broad regulative and supe
the council was envisaged :

[A]s the central authority to superintend and regulate

industry, to act as its guide, friend and philospher, and
the Central and State Governments in (sic) regard to
matters connected with the production, distribution an
tion of films.60

The committee suggested that the council, consisting of a chairman and

seventeen other members drawn from the industry and government, would
take up, over a period of time, the functions of the existing Board of
Censors.61 Secondly, the committee recommended the establishment
of an organization similar to the Production Code Administration then
operative in the United States which would scrutinize and grant approval
to film scripts as a precondition for commencing production. The
committee visualized this organization as an adjunct to the Film Council,
and as having regional branches in Delhi, Calcutta, Bombay and Madras,
with a central office in some other major city. Although initially seen
as under the supervision of the Central Ministry of Information and
Broadcasting, it was proposed that the functions of the Production Code
Administration later be incorporated into the administrative structure of
the Film Council.62
Despite the government's general approval of the committee's motion
of centralization of censorship functions, it did little to give effect to its

57. See Second Amendment Act., Statement of Objects and Reasons, Gazette of India
part V, Dec. 10, 1949, at 405. The Second Amendment Act , itself, came into force in
January of 1951. In 1952, the Central Board of Film Censors published a four-paged code
of detailed instructions regarding the deletion of "objectionable matter" from films on the
ground that "it is desirable that there shall, as far as possible, be a uniform standard for
determining whether a film is suitable or not for unrestricted public exhibition or for public
exhibition restricted to adults." Central Board of Film Censors, Directive to Examining
Committees Regarding the Principles to be Observed in Determining Whether a Film is or
is not suitable for Public Exhibition, at 1 (1952).
58. See Ministry of Information and Broadcasting, Resolution No.34/3/48-F, August
29, 1949.
59. See 1951 Report.
60. Id. at 187-188.
61. Id. at 188.
62. Id . at 194-95.

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 512 JOURNAL ÔF THE INDIAN LAW INSTITUTE [Vol. 14 : 4

recommendations. Apart from the constitutional difficulties inherent in

the committee's proposals,63 the report was completed too late to influence
the new consolidating Cinematograph Act of 1952, 64 which repealed the
earlier 1918 Act and its subsequent amending acts, and provided for the
current organizational structure of film censorship in India.

C. Cinematograph Act of 1952 and related rules

1. Organizational framework

The 1952 Act provides that the central government shall establish
a Board of Film Censors, consisting of a salaried chairman and not more
than nine other members appointed by the central government.66 The
precise terms and conditions of service of these latter members are not
specified in the Act itself, but rather are to be supplied by supplementary
legislation.66 To this end, the Act empowers the central government
to promulgate rules which delineate, inter alia , the exact number of the
members of the board, the procedure for examining and certifying films,
the appointment of subordinate boards and officers, the conditions which
may be imposed on a film certificate, and the manner of appealing from the
decision of the censor board.67
Pursuant to this enabling provisions, the government published in
195868 a collection of rules which set forth in some detail the institutional
organization and operation of the film censorship boards in India.69 The
rules established a Central Board of Film Censors, consisting of a full-time
chairman and six other members to be appointed by the central government.70
This Board is located in Bombay71 and is required to submit annual reports
of its work to the central government, and to direct and review the work
of subordinate regional boards, where the actual censorship process takes
place.72 A regional and assistant regional officer is located in each of the
cities of Bombay, Calcutta, and Madras.73 Both the Cinematograph Act

63. The Committee did reognize that its recommendations might pose some
constitutional problems but blithly hoped, without bothering to analyze them, that they
could be "got (ten) out of the way,."
64. Central Act 37 of 1952 (March 21), Cinematograph Act of 1952, (hereinafter
cited as 1952 Act).
65. Supra note 64 s. 3(1) and (2).
66. Id . s. 3(3).
67. Id. s. 8.
68. Prior to this time, the modus operandi of the censorship boards had been based
on the Cinematograph (Censorship) Rules, 1951, which had been promulgated in pursuant
to s. 9(1) and (2) of the 1918 Act, as amended.
69. The Cinematograph (Censorship) Rules, 1958, published m the Gazette of India ,
Oct. 11, 1958, at 2, s. 3 (/), No. 35, as amended [hereinafter cited as 1958 Censorship
Rules].
70. 1958 Censorship Rules , rule 3.
71. Id. rule 6.
72. Id. rule 11.
73. Id. rule 10.

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 1972] FILM CENSORSHIP IN INDIA 513

and the Censorship Rules provide for the appoin

panels consisting of an unspecified number of person
opinion of the Central Government to judge the effect of
in each of the above regional centers to assist in t
certification of films.74
On receipt of an application to certify a film for p
the regional officer is required to appoint an examin
actually views the film and recommends a particular c
case of news-reels documentaries, cartoons or educatio
ing committee consists of one member from the adv
regional or assistant regional officer; whereas in the ca
the committee consists of four members from the ad
regional or assistant regional officer.78 Immediately
film in question, the members of the examining comm
whether the film should receive a "U" (suitable for
exhibition) or "A" (suitable for public exhibition rest
no certificate, or whether a "U" or "A" certificate may
portions are expurged from the film.79 The rules requ
of the committee members with regard to the recomm
be recorded,80 but the actual deliberations of the com
are never transcribed.81 Moreover, the applicant,
74. 1952 Act s. 5; 1958 Censorship Rules, rule 8. In Bombay
of the advisory panel is 35 persons in Calcutta 20 and in Mad
sanctioned strength of the Advisory Panels may be appointed by t
and the remaining two-thirds are to be appointed by the governm
the Central Board. While no detailed qualifications have been p
for the appointment of either the members of the Central Boar
such members are purportedly drawn from different walks of l
knowledgeable of the arts, education, social welfare work, journalis
Individuals connected with the film industry, however, are not ap
Panels. See Khosla Report , supra note 5 at 16-17. The recruit
officers, additional and assistant regional Officers are more strict
from Civil Service qualifications, and include a recognized univer
ledge of an Indian language and Indian history plus some manageri
requirements. Id. at 18.
75. The manner for submitting such an application is set for
Rules , rule 22. The number of films submitted for certification h
in recent years. In 1965 and 1966 for example, 526 films were pr
in 1967 a total of 569 films, and in 1968 slightly over 530 film
Regional Boards. In each of these years, the average number of
for certification was approximately 207. Khosla Report at 16.
76. 1958 Censorship Rules , rule 23(1).
77. Id. rule 23(2) (a) and (b).
78. In many potentially controversial cases, members of the examining committee
are given before hand a script of the film came for certification to study in detail, and often
the committee meets for a preliminary showing and discussion of the film in order to make
a more informed decision when the film comes up for final showing and discussion.
79. 1958 Censorship Rules, rule 23(3) (a) ( b ) and (c). See also 1952 Act s. 4.
80. Id. rule 23(3).
81. See Levin, Hearing Procedures of Three Indian Administrative Agencies, 4
J.I.L.I. 205, 209(1962).

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514 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14 : 4

from both the screening of the film and the subsequent deliberations of
the committee.82
After the general discussion, the regional officer informs the applicant
in writing of the committee's "tentative" conclusions, whereupon, if the
applicant is dissatisfied with this conclusion (usually an "A" decision)
he may request an informal hearing in which he can discuss his position
with the committee.83 Again, no record is made of the deliberations of
this informal meeting.84 A copy of the committee's final decision and the
votes of each member is then sent to the ehairman of the Central Board
of Film Censors, who thereupon directs the regional officer to certify the
film on behalf of the board as "U" or "A" as the case may be.85
On the other hand, if the applicant objects to the conclusion of the
examining committee or the chairman of the Central Board desires a re-
examination of the film, the latter can refer the film and the record of
administrative decision to a revising committee, consisting of the chairman
and all resident members of the advisory panel of the place where the applica-
tion was received.86 The revising committee then proceeds to review the
film in the same manner as the examining committee.87 The decision of
the revising committee is determined by majority vote and a certificate is
issued in accordance with its decision.88
If the applicant is dissatisfied with the decision of the revising commi-
ttee, a final appeal lies to the central government.89 More specifically,
82. Id. at 208-09.
83. 1958 Censorship Rules, rule 24. This informal hearing usually takes place in the
office of the regional officer. The applicant, who may bring anyone he wishes to this
hearing, usually does not employ legal counsel at this point in the administrative process.
Rather he brings along, for example, the script or song writer who authored the portions of
the film which the committee feels should be deleted or which called for the "A" certificate.
Testimony by such individuals, explaining the meaning of the expurged portions, is often
apparently more effective and informative than legal arguments. Levin, supra note 81 at
21 1 . For a critical description of the informal bargaining carried on between the applicant
and the cnsorship officials during these meetings see Krishna, Indian Noncensor 6 : Censor
Board Censured; Blitz, Dec. 4, 1971, at p 19.
Usually applicants for certification of an imported film do not request this ora^
hearing, but rather solicit the committee's written opinion on what is objected to and why;
to which he replies in writing. Levin, supra , note 81 at 211.
84. Levin, supra note 81 at 211.
85. 1958 Censorship Rules , rule 24.
86. Id ., rule 25(1) and(2). The regional officer may be invited to attend any meeting
of the revising committee and participate in the proceedings, but he does not have a right
to vote. Moreover, any members of the advisory panel who viewed the film in the capacity
of a member of the examining committee is barred from the revising committee with respect
to the same film. Id. rule 25(4) and (5).
87. Id. rule 25(6), (8) and (9).
88. Id. rule 25(12) and (13).
89. 1952 Act s. 5 C. Under section 5 C an applicant may appeal to the central
government within thirty days from the date of an order of the Film Board which (1) refused
to grant a certificate, (2) granted only an "A" certificate, or (3) directed the applicant to
carry out any excisions or modifications. In fact, though, most appeals to the central
government are made only in cases where a certificate has been completely denied. Levin,
supra note 81 at 213.

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 1972] FILM CENSORSHIP IN INDIA 515

the appeal is directed to the Ministry of Information

which may consult officers from other ministries, d
objectionable nature of the film in question.90 Thereaf
"after such inquiry into the matter as it considers necessa
the appellant an opportunity for representing his vie
order in relation to the film "as it thinks fit."91
The final decision with respect to the certification of a film is valid
throughout India for a period of ten years,92 at the end of which time it
may be renewed without further examination.93 Notwithstanding this,
the central government, on its own initiative, may direct that (1) a film
already certified by the board be uncertified, (2) a "U" certificate be altered
to an "A" certificate, or (3) the exhibition of a film be suspended for a period
up to two months, during which time it will be deemed to be an uncerti-
fied film.94 In addition, either the central government or the board, on
the petition of a member of the board or one of its advisory planeis, may
call for the re-examination of a previously certified film.95 The Cinemato-
graph Act and the Censorship Rules also provide for the cancellation of a
certificate and the imposition of criminal penalties for the exhibition of a
film in a manner otherwise than as prescribed by the certificate96.
It should be noted, however, that not all exhibitions of motion pictures
in India are necessarily subject to the strictures of the Cinematograph Act.
On the contrary, the Act provides that the central government may exempt
"the exhibition of any film or class of films" from the terms contained

90. For example, if the objectionable portions of a film are of a political nature, the
ministry may consult other branches of the central government which are concerned with
this particular area.
91. 1952 Act S.5 C. There is usually no taking of evidence in the deliberations of the
central government because no primary facts are in issue ; rather, the central focus of the
inquiry is on the ultimate facts of the case, i.e., the inferences to be drawn from the
undisputed primary facts. See Levin, supra note 81 at 213.
92. 1952 Act s. 5A(3); 1958 Censorship Rules , rule 28(1). If a film has received a
certificate only after portions of it have been deleted, the certificate must be endorsed with
specification of the sections removed and a statement of their exact length. Moreover, all
deleted portions must be surrendered to the regional officer, with a written declaration to
that effect, and must be destroyed after a period of three months (six months if the single
excesions exceed 75 feet in length). 1958 Censorship Rules , rule 26(1) and (2).
93. A re-examination is dispensed with, provided that the regional officer and the
chairman of the Central Board agree upon such a course of action. See 1958 Censorship
Rules , rule 28(2).
94 r If the central government determines that a previously certified film be uncerti-
fied, the applicant, or any persons to whom rights in the film have passed, is required to
surrender the certificate to the board within one month of such notification. 1952 Act s. 6.
1958 Censorship Rules , rule 32.
95. 1958 Censorship Rules, rule 33.
96. 1952 Act s. 7 ; 1958 Censorship Rules , rule 29. Alhtough the Cinematograph
Act provides for the imposition of criminal penalties, the courts have held that the Act
is not strictly speaking a criminal statute, but rather that, in regulating the exhibition
of films, its purpose is largely recreative or educational. See Net Ram Agarwalla v.
State of West Bengal , A.I.R. 1955 Cal. 609.

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516 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14 : 4

therein or from the Censorship Rules, subject to certain conditions and

restrictions.97 The primary beneficiaries of this exemption are recognized
film societies and cultural groups organized by foreign embassies in India
who now may view films which are not subject to expurgation by the censor-
ship authorities and may be exhibited without the need of a certificate. The
exhibition of such films are, nevertheless, subject to the condition that a
member of the Board of Film Censors must review them and be satisfied
"that there is no surreptitious attempt to project pernicious political pro-
paganda."98 Moreover, these films are screened by the president of the
Federation of Film Societies on purportedly aesthetic and artistic grounds.99
Although it has been recognized that film societies may be potentially
employed to circumvent or abuse the limitations imposed by the censorship
system, the counterveiling value of such organizations, in cultivating appre-
ciation for modern and innovative film techniques and in providing a viable,
albeit limited, outlet for greater artistic expression, is apparently deemed
to be a considerable more weight in the government's scale of priorities.100
With this review of the procedural framework of the Cinematograph
Act, substantive rules which are currently applied to films in India would
now be considered in some details in this paper. It is these substantive
provisions which have been the focus of recent judicial and popular
criticism.

2. Substantive rules

The Cinematograph Act sets forth the principal tenet which should
guide the censorship authorities in certifying films for public exhibition.
Section 5B(1) of the Act provides :

[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 interest of the security of
the State, friendly relations with foreign states, public order,
decency or mortality, or involves defamation or contempt of
court or is likely to incite the commission of any offense.

Because this provision is merely a general restatement of article 19(2) of

the Indian Constitution, the Act further provides that the central govern-
ment may issue directions delineating more fully the principles of film
censorship.101
Pursuant to this provision, the Ministry of Information and Broad-
casting issued its latest set of directives on February 6, 1960 which set forth
the specific rules designed to guide the various censorship boards in sanction-

97. 1952 Act s. 9.

98. Khosla Report , at 59.
99. Id. at 142.
100. Ibid.
101. 1952 Act s. 5B(2).

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 1972] FILM CENSORSHIP IN INDIA 517

ing films.102 These rules are classified into gene

application of general principles. The directives state
principles :
1. No picture shall be certified for public exhibition which will
lower the moral standards of those who see it.
Hence the sympathy of the audience shall not be thrown
on the side of crime, wrong-doing, evil or sin.
2. Standards of life, having regard to the standards of the country
and the people to which the story relates, shall not be so port-
rayed as to deprive the morality of the audience.
3. The prevailing laws shall not be so ridiculed as to create sympathy
for violation of such laws.103
These parameters are elaborated in the application of general principles,
which are derived in large part from the earlier rules of the 1918 Cinema-
tograph Act.104 Part I of this section details objectionable subjects which
are not suitable for the public exhibition in either unrestricted or adult
films, and considered them under six headings : crime,105 vice or immorali-
ty,106 relations between the sexes,107 exhibition of the human body,108
contempt of the armed forces, public services or persons entrusted with the
administration of law and order,109 or scenes which are likely to affront
the susceptibilities of any foreign nation, community or religion, foment
social unrest; or promote violence and disorder.110 Aside from these
topics the rules also list twenty-six subjects which may be objectionable in
a context in which either they amount to indecency, immorality, illegality
102. Ministry of Information and Broadcasting, Principles For Guidance In
Certifying Films, G.S.R. 168 (Í966) in Cinematograph Laws Research Institute, supra note
30 at 26-30. [hereinafter cited as Censorship Principles).
103. Id. at 27.
104. See text accompanying notes 32-38 supra.
105. Films should not deal with crime in a manner as to: e.g., "extenuate criminal
acts, "depict the modus operandi of criminals", throw glamour upon or enlist the
audience's sympathy for criminal characters, hold up to contempt law enforcement
officials, or "create the impression that crime pays or is a normal incident of ordinary
life". Censorship Principles at 27.
106. Films should not deal with vice or immorality in a manner as to: e.g.,
"extenuate vicious or immoral acts", "undermine the accepted cannons of decency",
"depict vice or immorality as attractive", or enlist the sympathy or admiration of the
audience for vicious or immoral character. Id. at 27-28.
107. Films should not deal with relations between the sexes in a manner as to e.g.,
"lower the sacredness of the institution of marriage", "suggest that illicit sexual relations
are ordinary incidents of life and not to be reprobated," or depict rape, seduction,
prostitution, or excessively passionate love scenes. Id. at 28.
108. Films should not exhibit the human body actually or in shadowgraphs : e.g.,
"in a state of nudity", "indecorously or suggestively clothed," or in an "indecorous or
sensuous posture".
109. Censorship Principles at 28.
110. Id. at 28-29. With respect to these subjects the directives point out as objec-
tionable : (1) "Disparaging references to the people of a foreign country or the head of
a foreign country or the head of a foreign State," and (2) "picturisation of subversive
methods or of guerilla technique." Id. at 29,

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 518 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14 : 4

or incite to commit a breach of the Law.111 With respect to certification of

films for unrestricted public exhibition, the rules lay down the subjects
which are deemed unsuitable for young persons; including (1) "anything
which may strike terror in a young person" such as scenes showing ghosts,
brutality, mutilations or torture, (2) "anything tending to disrupt domestic
harmony or the confidence of a child in its parents" such as scenes depict-
ing parents quarrelling or striking each other, or showing one or both of
them acting in an immoral fashion, and (3) "anything tending to make a
person of tender years insensitive to cruelty to others or to animal."112
Apart from the above directives, certain other unwritten rules governing
permissible film motifs have found their way into the ambit of the censor's
authority. Perhaps the most prominent of those is the virtual ban on kissing
between persons of the opposite sex in Indian films.113 The film censors
have applied this unwritten rule with such rigour that even kiss exchanged
in a clearly nonincestuous manner between a mother and her son or a
father and his daughter is not permitted to be shown.114 While public
displays of affection, including kissing, are not conventional or normative
behaviour in India, 115 the film censor's proscription against kissing, in part
with other substantive rules of the code present serious questions of consti-
tutionality, which only now are being recognized by the courts and legal
commentators.116 In a similar league, although finding greater precedent
in the application of general principles issued by the centrai government,
is the film censor's curious obsession with proper coverage of the female
bust.117

111. These include, inter alia , details of surgical operations, venereal disease, suicide
or genocide, unnecessary exhibition of female under-clothings, indecorous dancing, cruelty
to children or animals, brutal fighting, excessive bleeding, drunkenness, use of drugs,
stimulation of class hatreds, horrors of warfare, intimate biological studies, malforma-
tions, and defamation of any living person. Id. at 29-30.
112. Id. at 30.

113. Khosla Report at 53. See also Amladi, From 'Fillums' to Films: Interview
with Mrs. Nandini Satpathy, Minister of Information and Broadcasting, supra
note 5 ; Krishna, Indian Noncensor 1 : Obsession with Sex, supra note 5 : The
Times of India Editorial, March 9, 1972 at p. 6.
114. Khosla Report at 53.
115. See text accompanying infra .
116. See generally notes 5 and 6 supra.
117. See Krishna, Indian Noncensor 3 : No "Bosom" Friends, supra note 5. Some
examples are instructive : in the film "Shahenshah", the censors ordered deletion of "shots
of the statue with bare bust"; "close ups and mid-shots of Rajkumari with one breast
emphasized and uncovered by odni (170 feet)" were ordered to be deleted from the film
"Samrat"; in the film "Prapancham" a "jerking of bust in close-up by one of the dancers
(3 feet)" was expurged; some "close-up shots of Maya in Nursi's uniform where camera
is focused on the nipple (2 bits, 11 feet)" were excised from the film "Minimi"; and the
following scene was deleted from the film "Husn-Ka Chor" : "mid close-ups of Nadira's
bust while she is kneeling at the King's feet (15 feet)." N. Hunnings, supra note 2.
at 238.

Of course, the censors could argue that the excision of scenes fccusing on the female
bust are justified under application of general principles I(D)(ii), which prohibits the
exhibition of the human form "indecorously or suggestively clothed." This does not,
however, obviate the constitutional question of whether these restrictions are "reasonable,"
which overshadows all the detailed directions of the code.

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1972] FILM CENSORSHIP IN INDIA 519

With respect to all of the above rules, both written a

the Indian film censors are considerably more lenient wh
to motion pictures of a foreign origin. This so-called "do
of film censorship has been frequently assailed by Indian
producers primarily on the ground that because they ar
same degree of artistic expression as their American or E
parts, they are, therefore, the victims of an invidious d
Notwithstanding the intrinsic merit of this argument, th
application of the film censorship rules does find some le
general principles for guidance in certifying films issue
government. General principles number two provides tha

[Standards of life, having regard to the standards of th

and the people to which the story relates, shall not be
rayed as to deprave the morality of the audience.119

The censors maintain in this regard that the typical audie

film is substantially different from one which views a for
most foreign films ,^re in English, it is argued, they are
urban, and impliedly more mature, audiences. Given
assumed general laxity in the western morals and the pur
of foreign-film audiences, the censors conclude that the
is both appropriate and justified.120 However, even apar
constitutional issues, there appear to be a number of que
tions underlying the above argument. In the first place, a
of the above general principle can lead to certain anom
that it postulates two variables , (1) the standards of life
and people with which the film is concerned, and (2) the1
audience; the question then becomes which variable is to
weight in a seemingly incompatible situation ? For ex
a film concerning a country with liberal moral standard
audience with more conservative morals ?121 In deciding u
to be applied to the film, should the censors make al
liberal life styles of the people portrayed in the film as
heneral principle, despite the fact that they may purport
morality" of the more conservative audience ? Ör, on th

118. See Khosla Report at 93, 131.

119. Censorship Principles at 27.
120. See Khosla Report at 132.
121. This situation may not be as far fetched as the censors a
author's own experience and from discussions with knowledgeabl
clear that many of the uneducated and a more conservative villager
Indian towns, often come to the cinema to see foreign films for th
the "sexy scenes" contained therein, despite the fact that they can
language. Moreover, in India the mere fact that a person lives in a
understand some degree of English, does not necessarily mean that
are more liberal. Often the converse may be true.

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$20 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14 : 4

the morality of the audience determine the rigour with which censorship
standards will be applied to a foreign film ? The general principle provides
the authorities with no calculus to determine this question, but rather
seems to cloud the whole issue. Moreover, if one assumes that virtually
all classes or strata of Indian society adhere to a more conservative life
style or moral standards than their American or European counter-
parts, does not follow that all such foreign films will so act as to corrupt
or "deprave" the Indian audiences which view them ? In the second place,
the notion that Indian censors (or, for that matter, any body of censors)
can determine, except in the grossest, most subjective sense, the moral
standards and life styles of people in other countries appears to be both
presumptuous and unreliable. Moreover, if the average Indian filmgoer is all
that offended by scenes of nudity or kissing, it would seem to make little
difference that the censorship authorities have concluded that such be-
haviour is sanctioned by moral norms of the foreign country in question.
In sum, then, it is submitted that the double standard of film censorship
in India is unwarranted because it unfairly discriminates against the artistic
expression of Indian film producers, adds unnecessary confusion to
the censorship rules, acerbates the "holier-than-thou" attitude so prevalent
among censorship officials, and simply will not accomplish trends it is
designed to meet.
Given the above development of film censorship in India, this paper
will now focus upon the constitutional infirmities which appear to be
inherent in the present system. As an initial point of departure, it shall
consider the implications of the recent Indian Supreme Court decision in
K.A. Abbas v. Union of India 122 with respect to continued legal validity of
the film censorship operation.

II. The K.A. Abbas decision : towards a new theory of film censorship

A. An exegesis

K.A. Abbas, a noted Indian journalist, play-wright, film producer,

and former member of the 1968 Enquiry Committee on Film Censorship,
produced in 1968 a short documentary film entitled a "Tale of Four Cities,"
in which he sought to contrast, by way of social statement, the self indulgent
life of the rich in Calcutta, Bombay, Madras and Delhi with the squalor
and destitution of the labouring masses who helped to construct the impos-
ing residences, factories, and other industrial complexes utilized by the
rich. The documentary is further described by the Supreme Court as
follows :
The film is in black and white and is silent except for a song
which the labourers sing while doing work and some back-
ground music and sounds for stage effect. The film in motion
sequences or still shots shows contrasting scenes of palatial

122. See supra note 6.

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1972] FILM CENSORSHIP IN INDIA 5Ż1

buildings, hotels and factories - evidence of the prospe

a few, and shanties, huts and slums - evidence of pover
the masses. These scenes alternate and in between are other
scenes showing sweating labourers working to build the former
and those showing the squalid private life of these labourers.
Some shots mix people riding in lush motor cars, with rickshaw
and handcart pullers of Calcutta and Madras. In one scene a
fat and prosperous customer is shown riding a rickshaw which a
decrepit man pulls sweating and panting hard. In a contrasting
scene the same rickshaw puller is shown sitting in the rickshaw
pulled by his former customer... on view are the statues of
the leaders of Indian Freedom Movement looking impotently
from their high pedestals, in front of palatial buildings on the
poverty of the masses.123

The film goes on to explore the theme of the exploitation of women by men,
focusing on several realistic scenes dealing with prostitution. Initially,
there is a one-minute shot scanning the "Cages" or the red light district
in Bombay and showing the prostitutes in short dresses standing outside
the brothels. The scene shifts to one of the prostitutes shutting a window
behind which it is implied that she will entertain her customer, then a shot
the hands of a woman holding some currency notes which are snatched
away by a male hand (impliedly those of the pimp). The sequence ends
on a symbolic note with the prostitute imagining her room as a cage and
then dreaming of her life before she had embarked on a life of hustling.
Abbas applied to the Board of Film Censors for a 4 'U" certificate,
permitting unrestricted exhibition of the film, but was informed by the
regional officer that the examining committee had provisionally concluded
that the film should be restricted to adults. The revising committee con-
curred in this result, whereupon Abbas, after exchanging correspondence
with the board, appealed to the central government. The government
decided to grant a 4 'U" certificate provided that the scenes in the red light
district were deleted from the film.124 Abbas then brought a suit,125 alleging
that: (1) the pre-censorship exercised by the film censors violated the
fundamental right to the freedom of speech and expression, (2) even if
pre-censorship was a legitimate restraint, it must be exercised on the basis
of definite principles which preclude arbitrary action, (3) there must be
a reasonable fixed time limit for the decision of the film censors, and (4)
final appeal in the process should lie to a court of law and not the central
government.
The court, in a decision delivered by Chief Justice Hidayatullah,
dispensed with the latter two contentions in scarcely a paragraph because
the Solicitor-General conceded their validity and assured the court that
the government would take steps to effectuate these policies at the earliest

123. Id. at 483-84.

124. See generally Krishna, Indian Noncensor 4 : Mohabbat Mrick, supra note 5.

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SÌ2 ÍÓUŘNAL ÒP ftïÉ tNĎtAN LAW IŇSŤIŤUŤE [Vol. 14 : 4

possible date. In response to a chart drawn up by the government showing

the time it took to censor films during the preceeding year, the court said that,
with the exception of a few cases, the time taken was not "unreasonable".126
The court, however, neglected to establish whether "reasonableness"
would henceforth be the standard applicable to the time taken to censor
films or whether the exceptional cases noted in the government's chart or
the Abbas situation itself indicated the violation of some constitutional
right. The murkiness of the court's analysis is also manifest in its per-
functory treatment of the appeal issue. On this question Chief Justice
Hidayatullah saw fit merely to state :

We express our satisfaction that the Central Government will

cease to perform curial functions through one of its Secretaries
in this sensitive field involving the fundamental right of speech
and expression. Experts sitting as a Tribunal and deciding
matters quasi-judicially inspire more confidence than a Secretary
and therefore it is better that the appeal should lie to a Court
or tribunal.127

Like so much of the analysis in Abbas this statement tells us nothing more
than the court's feeling about the matter; no where does it come to grips
with the specific legal issue at hand. While one may forgive the court's
circumlocuity on this question because of the government's concession,

125. S. 7F of the the Cinematograph Act provides that :

No suit or other legal proceeding shall lie against the Central Government,
the Board, advisory panel or any officer or member of the Central Govern-
ment, Board or advisory panel, as the case may be, in respect of anything which
is in good faith done or intended to be done under this Act.
Some have concluded from this provision that it is virtually impossible to challenge
a decision of the film censorship authorities in a court of law except on the ground of
mala fides , or bad faith, which is quite difficult to establish, and hence, they argue,
decisions in this area are simply a matter of administrative discretion. See M.P.
Jain, supra note 9 at 534. Previous decisions which have proceeded on this basis demons-
trate the difficulty of proving the bad faith argument. See Radha Films Ltd. v. West
Bengal Board of Censors , A.I.R. 1952 Cal. 453, 454-455.
In fact, however, it does appear that an aggrieved applicant for a film certification
can make an ultimate appeal to the courts under arts. 3 2 and 226 of the Constitution.
See Province of Bombay v. Khyshaldas , A.I.R. 1950 S.C. 222. Art. 23(1) grants the right to
move the Supreme Court for the enforcement of any of the fundamental rights (including,
of course, the right to freedom of speech and expression). Art. 32(2) empowers the
Supreme Court to issue the appropriate directions or orders or writes in the nature of
habeas corpus , mandamus , prohibition, quo-warranto and certiorari to enforce such rights.
The Parliament may confer the above powers on inferior courts under art. 32(3). Art. 226
specifically empowers the High Courts to issue any of the above directions or orders or
writs to enforce an exercise of any of the fundamental rights. This would clearly seem
to apply to proceedings under the Cinematograph Act. But see P.N. Films Ltd. v. India,
A.I.R. 1955 Born. 381.
126. K.A. Abbas v. Union of India , supra note 6 at 485.
127. Ibid .

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 1072] FILM CENSORSHIP IN INDÍA 523

its adjudication of decision in later issues is scarcely defen

exercise in judicial self-restraint.128
After delineating in some detail the history, organizati
and substantive rules of the film censorship system in India,
went on to consider the issue of whether pre-censorship of fi
constitutional restraint on freedom of speech and ex
end, he established two premises which foreordained the
that pre-censorship of films is constitutionally perm
pointed out that such prior restraints are not qualitively
any other form of censorship, the only distinction being t
the state interposes its regulations between the individua
dom.129 Secondly, he held that motion pictures, because
ability to portray realism and arouse the senses, must
different footing than other forms of art and expre
following passage indicates :

The art of the cameraman, with trick photography vis

and three dimensional representation . . . has made th
picture more true to life than even the theatre or. .. an
form of representative art. The motion picture is able
up emotions more deeply than any other product of
effect particularly on children and adolescent is very gr
their immaturity makes them more willingly suspend
disbelief than mature men and women. They also remem
action in the picture and try to emulate or imitate wh
have seen

be regarded differently from other forms of speech and e

sion.130

On this basis, the court concluded that the classification of films, prior to
their exhibition, into "U" and "A" categories is not an unreasonable
restriction within the dictates of the Constitution.
By assuming that pre-censorship is merely an aspect of censorship
in general and that films are subject to different - and by implication more
rigorous - scrutiny than other mediums of expression, the court narrowed
the issue to one more readily resolvable : whether films require any censor-
ship at all.131 In this regard, it gave a cursory review of the major U.S.

128. For a discussion of the court's failure to actually decide whether the detailed
provisions of the code relating to impermissible film topics are unconstitutional see text
accompanying notes 150-52 infra. Much of the court's analysis in the Abbas case appears
to be more in the nature of an advisory opinion rather than a decision on constitutional
issues which are posed by the Film Code and the merits of the Abbas situation in particular.
129. Supra note 6 at 489.
130. Ibid.

131. Given the court's premises such a logical jump may be permissible. The
trouble, however, whereas in the premises. For a more complete and critical- discussion
of these assumptions see text accompanying notes 153-208 infra.

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a 4 JOURŃAL ÖF ŤHE ÍNĎÍAN LAW INSTIŤVTE [Vol. 14 : 4

Supreme Court decisions on freedom of speech and film censorship and a

brief summary of recent British obscenity law. The court, however,
concluded that minority opinion espoused by justices Black and Douglas,
i.e., that film censorship of any nature is constitutionally impermissible is
inapplicable to the Indian experience because, unlike the First Amendment
of the U.S. Constitution which guarantees the right to freedom of speech
and expression in absolute terms, article 19(2) of the Indian Constitution
clearly envisages legitimate restrictions on this right.132 Such restrictions
in the interests of decency and morality are justified, the court adds in a
philosophical note, because, in general, the "social interests of the people
override individual freedom."133 Chief Justice Hidayatullah further
adds :

Whether we regard the state as the paren patriae or as guardian

and promotor of general welfare, we have to concede, that these
restraints on liberty may be justified by their absolute necessity
and clear purpose

require the formulation of policies and regulations to co

dishonesty, corruption, gambling, vice and other thi
immoral tendency and things which affect the security
State and the preservation of public order and tranquillit
As to what conditions compel the "absolute necessity and c
of restrictions on the exhibition of motion pictures and as
cause "dishonesty, corruption, gambling" or other such vices
The opinion, however, does qualify the above argument by

[I]f the regulations venture into something which goes

this legitimate opening to restrictions, they can be ques
on the ground that a legitimate power is being abused.135

But, again, the court fails to delineate or propose a constitu

ascertaining what precisely is meant by "something which
this legitimate opening to restrictions."
The court's prosaic analysis does not much improve when
the petitioner's argument that the substantive censorship ru
stitutionally vague. Rejecting both the notion that the "void

132. Supra note 6 at 494. Justice Douglas, himself, recognized this

he stated in Kingsley Inť I. Pictures Corp . v. Regents that :
If we had a provision in our Constitution for "reasonable" regulati
press such as India has included in hers, there would be room for
that censorship in the interests of morality would be permissible.
(1959) 360 U.S. 684, 698 (concurring opinion). In Abbas the court, h
have correctly observed that despite the absolute wording of the F
the U.S. Supreme Court has long attempted to read the words "reason
or something very much like that, into the Amendment. See supra n
133. Supra note 6 at 495.
134. Ibid.
135. Ibid (emphasis added).

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 1972] FILM CENSORSHIP IN INDIA 525

doctrine is wholly inapplicable to the litigation involving

of one of the fundamental rights136 and, on the other
followed an intermediate approach, noting :
The real rule is that if a law is vague or appears to
the Court must try to construe it, as far as may be, and l
permitting, the construction sought to be placed on it, m
accordance with the intention of the legislature. Thu
law is open to diverse construction, that construction
accords best with the intention of the legislature..
preferred. Where however the law admits of no such
tion and the persons applying it are in a boundle
uncertainty and the law prima facie takes away a gua
freedom, the law must be held to offend the Constitu
This is not the application of the doctrine of due pro
invalidity arises from the probability of the misuse of th
the detriment of the individual.138

Based on this standard, the court declared that the general principles of
the censorship directives, being merely a restatement of article 19(2) of the
Constitution, could not be said to be impermissibly vague. The application
of general principles, however, presented more of a problem. In adjudg-
ing whether these directives were unconstitutionally vague, the court

136. In so doing, the court appears to have overruled Amritsar v. State of Punjab ,
A.I.R. 1969 S.C. 1100 which held that while a law may be declared invalid by the courts
on the ground that it was ultra vires the legislature or infringes upon a fundamental right,
it may not be so invalidated on the ground that it is vague or offends some notion of "due
process." The Amritsar case, however, may have been an exceptional case outside the
mainstream of Indian jurisprudential thought because it is clear that legislation had been
declared void for vagueness previously. See e.g. State of Madhya Pradesh v. Baldeo
Prasad , A.I.R. 1961 S.C. 48.
137. The court explained ten years earlier in Collector of Customs v. Chetty the
reasons why a strict "due process" approach is not applicable to Indian constitutional
law :
Though the tests of "reasonableness" laid down by els. (2) to (6) of Article 19
might in great part coincide with that for judging of "due process," it must
not be assumed that they are identical for it has to borne in mind that the
Constitution framers deliberately avoided in the context the use of the ex-
pression "due process" with its comprehensiveness, flexibility and attendant
vagueness in favour of a somewhat more definite word "reasonable," and
caution has, therefore, to be exercised before the literal application of the
American decisions.
A.I.R. 1962 S.C. 316, 328. How or in what degree the word "reasonableness" is any
more precise than "due process of law" is not made clear.
It should be pointed out, however, that art. 21 of the Indian Constitution does
provide that "No person shall be deprived of his life or personal liberty except according
to procedure established by law", (emphasis added). Despite its analogous construction
to the American "Due Process" clause of the Fifth and Fourteenth Amendments, Indian
courts have not seen fit to so develop this provision. See Gopalan v State of Madras
A.I.R. 1950 S.C. 27, 39.
138. Supra note 6 at 496,

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5Ż6 iÖ ÜkNAL ÓF THÈ tNĎÍAŇ LA W tŇŠŤtTUŤE [Vol. 14 : 4

formulated anancilliary test to the "boundless sea of uncertainty" standard.

The words used are "within the common understanding of the average
man".139 If the average man can understand the meaning of "rape" set
down in the Penal Code, said the court in applying the test, he can doubtless
comprehend the meaning of expressions such as "seduction", "immcral
traffic in women", "soliciting, prostitution or procuration", "indelicate
sexual situation", "scenes suggestive of immoraUty", "traffic and use of
drugs", "class hatred," and "blackmail associated with immorality". If
the average man can understand such terms, the court further argued, then
a fortiori the members of the censorship boards would comprehend the
nuances of these expressions.140 Hence, it could be said, the court held,
that such rules or directions are unconstitutionally void on account of
vagueness.
Despite the above assurances, the court declined to endow the code
with its complete impremature of approval. Rather, as the Chief Justice
noted :

[W]hat appears to us to be the real flaw in the scheme of the

directions is a total absence of any direction which would tend
to preserve art and promote it. The artistic appeal or presenta-
tion of an episode robs it of its vulgarity and harm and this
appears to be completely forgotten. Artistic as well as inartistic
presentations are treated alike and also what may be socially
good and useful and what may not.141

To rectify this situation, the court recommended - rather than held - that
the film censorship authorities adopt certain principles relating to the notion
of obscenity which had been promulgated in the landmark decision of
Ranjit Udeshi v. State of Maharashtra .142 Although the Udeshi case
involved the censorship of an allegedly obscene book under section 292 of
the Indian Penal Code,143 the court in the Abbas case held the principles
which evolved thereform "apply mutraties mutandis to film and. ..other
areas besides obscenity."144 These principles included, inter alia :
(1) treating with sex and nudity in art and literature cannot be regarded
evidence of obscenity without something more ; (2) although the determina-
tion of obscenity must be predicated on a consideration of the book (film)
as a whole, the allegedly obscene matter must be considered separately to
acertain whether it is so gross that "the tendency of the matter charged

139. Id. at 497.

140. Ibid. The notion of the "average man" takes on a different significance m
India where the true "average man" is probably an illiterate, rural peasant. It follows,
then, that when the court speakes of "the common understanding of the average man,"
it probably is referring to the "average educated man who can understand English."
141. Ibid.
142. A.I.R. 1965 S.C. 881.
143. Act XLV of Oct. 6, 1860.
144. Supra note 6 at 497.

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 Ì9ÌÌ] FILM CENSORSHIP IN INDIA 527

as obscene is to deprave or corrupt those whose minds are o

immoral influences and into whose hands (or view) (such ma
fall. . . ;"145 (3) where obscenity and art are intermixed, art must
ponderating as to completely overshadow the obscene m
determination of obscenity will not be made where the matt
includes the propagation of ideas, opinions and informati
interest or profit; and (5) obscenity without a preponderating
or profit.146
What is not clear from the court's enumeration of the Udeshi rules
is whether it is suggesting that obscenity be incorporated into the Film
Code as the standard for judging whether a film is suitable for public
exhibition. The court did speak of such principles applying to films and
"other areas besides obscenity", implying that films are outside the para-
meters of straight forward obscenity analysis. On the other hand, however,
many of the principles developed in the Udeshi decision and summarized
by the court in Abbas are seemingly inappropriate for anything other than
a strict obscenity type analysis.147 v
The court's analysis with respect to the necessity of a detailed set of
directions on impermissible film subjects is also far from illuminating. On
one hand, the court cites the following passage from the Udeshi case :
The test which we evolve must obviously be of a general character
but it must admit of a just application from case to case by
indicating a line of demarcation not necessarily sharp but suffi-
ciently distinct to distinguish between that which is obscene and
that which is not.148

To this, Chief Justice Hidayatullah added :

A similar line has to be drawn in the case of every topic in film
considered unsuitable for public exhibition or., .to children,149

seemingly implying that a general, flexible rule - rather than the present
detailed set of directives - should be applied to films in such instances.
The court's ostensible desire for a set of general principles of film censor-
ship is further suggested by the following passage :
The task of the censor is extremely delicate and his duties cannot
be the subject of an exhaustive set of commands established by

145. This test is, of course, taken from the decision of Chief Justice Cockburn
in the famous English case of Regina v. Hicklin, L.R. (1868)3 Q.B. 360, 371. As the
Udeshi case makes clear the Hicklin test is still a viable albeit modified doctrine in current
Indian law on obscenity. For a more detailed discussion of the Hicklin progeny in
India, see text accompanying note 236-52 infra.
146. Summarised in the Abbas case, supra note 6 and Khosla Report at 118-19
147. For example, the principle that obscenity without a preponderating social
purpose or profit cannot claim constitutional protection.
148. Ranjit Udeshi v. State of Maharashtra , supra note 142 at 887, quoted in Abbas
at 498. (emphasis added).
149. Supra note 6 at 498.

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528 JO URNAL OF THE INDIAN LA W INSTITUTE [Vol. 14 : 4
prior ratiocination.. . . Our standards must be so framed that
we are not reduced to a level where the protection of the least
capable and the most depraved amongst us determines what
the morally healthy cannot view or read. The standards that
we set for our censors must make a substantial allowance in
favour of freedom thus leaving a vast area for creative art to
interpret life and society with some of its foibles along with
what is good.150
Despite these words, the court concluded, "We have said all this to show
that the items mentioned in the directions are not by themselves defective. "151
On the contrary, the court upheld the forty-three rules, originally formula-
ted by T.P.Ö' Connor and, added that, "Parliament has not legislated
enough, nor has the Central Government filled in the gap."152 with respect
to divorcing the artistic and socially valuable aspects of films "from that
which is deliberately indecent, obscene, horrifying or corrupting."1520
Like many decisions considering a volatile constitutional issue by
way of first impression, Abbds simply fails to provide that degree of penetrat-
ing and lucid analysis which is essential for the development of sound
constitutional doctrine in the area of civil liberties and fundamental rights.
Aside from suggesting that the government should enhance the substantive
censorship rules by providing greater protection for socially valuable
artistic expression in films, Abbas merely holds that censorship (including
pre-censorship) of motion pictures is constitutionally valid; that films may
be subject to different, more rigorous, scrutiny than other mediums of
expression; and that the censorship regulations are not unconstitutionally
vague. But, as the next section of this paper seeks to demonstrate, even
these facile conclusions appear to be of dubious merit.
B. The Abbas decision in perspective : some reflections in the constitu-
tional standards

1. Pre-censorship of motion pictures

The court in Abbas reasoned that pre-censorship of films is constitu-
tionally justified on the basis of the following syllogism : (1) pre-censorship
or prior restraint153 is merely one aspect of censorship in general, (2) censor-
ship in the interests of decency and morality etc. is constitutionally valid
150. Ibid, (emphasis added).
151. Id. at 499.
152. Ibid .
152 a. Ibid.
153. The two concepts mean essentially the same thing. Professor Thomas
Emerson has defined the concept of "prior restraint" as follows :
The concept of prior restraint, roughly speaking deals with official restrictions
imposed upon speech or other forms of expression in advance of actual
publication. Prior restraint is thus distinguished from subsequent punishment,
which is a penalty imposed after the communication has been made as a punish-
ment for having made it.
Emerson, The Doctrine of Prior Restraint 20 Law and Contemp. Prob. 648 (1955). The
classic instance of prior restraint, according to Emerson, "arises in those situations where

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 1972] FILM CENSORSHIP IN INDIA 529

in India under article 19(2) of the Constitution, (3) therefo

is also constitutionally valid.154 The error in this reas
the first premise : the presumption that pre-censorship
other form of censorship, save only for differences in the
to which it is applied. While this close kinship may be
in practice pre-censorship is significantly different. Fora v
it is by far more effective and convenient for the cen
punishments or ex post facto restrictions and, conseq
able to preserving civil liberties.155 In the first place
censorship invariably brings with the scope of official scru
amount of communication than subsequent punishment
all expression in the area controlled - both innocent an
pall of government approval. Hence, with the presenc
control so pervasive, more issues are likely to be re
expression.156 Secondly, under a system of ex post fa
communication, whatever its worth, can enter the "ma
whereas under a system of pre-censorship, it may neve
place or alternatively be so delayed that it become obsolete or
unprofitable.167 Thirdly, inherent in a system of prior restraint is the
propensity for an adverse decision against freedom of expression. Unlike
a system of subsequent punishment where a government official must do
some serious debating before undertaking the onerous expensive and time-
consuming task of prosecution a censor under a system of prior restraint
can accomplish the same task with mere stroke of a pen or snip of the
scissors.158 Fourthly, relatedly under a system of pre-censorship the

the government limitation, expressed in statute, regulation or otherwise, undertakes to

prevent future publication or other communication without advance approval of and
executive official". Id. at 655. The film censorship system in India is, of course, a prime
example of this form of prior restraint.
154. See text accompanying note 129, supra.
155. See P. Richards, Parliament and Conscience 113 (1970). Richards observes
that :
Pre-publication control is more effective and convergient for a censor because
the alternative (retro-active censorship) invites widespread comment on his
decision,
e.g. by legal proceedings or press accounts.
156. Emerson, supra note 153 at 656-57. This argument obviously assumes that
government is by and large predisposed against freedom of expression. While there may
be noteable exceptions to this assumption, it does seem clear that throughout the history
one of the chief means utilized by governments to maintain the status quo has been to place
restrictions (usually prior ones) on expression. Some of the more infamous examples
of the historical use of prior restraints include the Papal Bull, issued by Pope Alexander
VI in 1501, which prohibited unlicensed printing and the English Licensing Act of 1662,
13-14 Car. 2. C. 33. It was out of this against historical setting that the legal doctrines'
of pre-censorship were developed. See Id. at 650-52.
157. Id. at 657. This is particularly true with respect to motion pictures where
large investments are involved or politics where the timing of a communication is crucial.
158. See Times Film Corp. v. Chicago (1961) 365 U.S. 43, 75 (Warren, C.J., dissent-
ing).

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530 JO URN AL OF THE INDIAN LA W INSTITUTE [Vol. 14 : 4

question of whether a particular communication is to be expurged or not

is determined by an administrative rather than criminal procedure ; hence
the procedural safeguards of the criminal prosecution, e.g., presumption
of innocence, stricter rules of evidence and procedure, and the heavier
burden of proof borne by the government are not available. Thus, again,
the censor is much less restrained to violate the right to free expression
under a system of pre-censorship.159 Fifthly, there is less opportunity for
public appraisal and criticism of a system of prior restraint because it
operates behind a veil of informality and partial concealment. Hence,
the policies and procedures of licensing authorities do not as frequently
come to public attention and the reasons for official action are less likely
to be known and criticised. This surreptitious intrusion into civil
liberties does not augur well for the democratic process.160 Lastly, while
it may be true that a system of prior restraint affords greater certainty in
the law with less risk because a person can find out what is and is not per-
missible communication without incurring the danger of criminal sanctions
if his interpretation of the law is wrong, nevertheless the utilization of such
a system is premised on the notion of willingness to conform to official
opinion, and means in the long run that there will be less rather than more
communication of ideas.161
Apart from these compelling reasons, pre-censorship has long been
the subject of criticism in India.162 Moreover, in some non-film censorship
cases, the imposition of prior restraints on communication has been found
to be in violation of the Constitution. In Bhushan v. Delhi ,163 for example,
the Supreme Court struck down an order issued by the Chief Commissioner
of Delhi under section l{i)(c) of the East Punjab Safety Act164 against the

159. Ibid.
160. Emerson, supra note 153 at 658.
161. See Times Film Corp. v. Chicago , supra note 158 at 84, Douglas, J., dissenting.
162. See Cinematograph Laws Research Institute, Cinematograph Code , 33-4 (P.
Ramareddi ed. 1968); Khosla Report at 51-2. In a questionnatire commissioned by the
1968 Film Enquiry Committee and addressed to members of the Indian film industry one
of the main complaints of the respondents was the prior restraint imposed on films. One
reason proffered by the respondents against the system was the fact that the final shape
of a film can be vastly different in mood and manner from the original script and hence
attempts to impose restrictions at the script stage of production will be misleading. See
Khosla Report at 87.
163. A.I.R. 1950 S.C. 129.
164. S. 7(0(c) of the Act (Act 5 of 1949) provides as follows :
7(i). The Provincial Government or any authority authorized by it in this
behalf if satisfied that such action is necessary for the purpose of preventing
or combating any activity prejudicial to the public safety or the maintenance of
public order may by order in writing addressed to a printer, publisher or
editor -

(c) require that any matter relating to a particular subject or class of subjects
shall before publication be submitted for scrutiny.

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 1972] FILM CENSORSHIP IN INDIA 531

printer, publisher and editor of an english-language week

the "Örganizor", directing them

to submit for scrutiny in duplicate before publica

communal matter and news and views about Pakistan in
photographs and cartoons other than those derived from
sources or supplied by the news agencies

In deciding that section 7 (i)(c) of the Act constituted an

restriction, the court observed that :

There can be little doubt that the imposition of pre-censor

of a journal is a restriction on the liberty of the press wh
an essential part of the right to freedom of speech and expres
declared by Article 19(l)(a) of the Constitution.166

Unless, it can be conclusively demonstrated that motion pictu

a great capacity for evil than other mediums of communicat
to require the imposition of prior restraints,167 the rule of the B
should be applied to the realm of film censorship.
In the United States, by way of comparative analysis, the
against prior restraints, despite a venerated history, remain
confused in the area of film censorship, and for many years
source of both considerable criticism and praise.168 The first
still the most prominent, American Supreme Court decision
in depth the constitutional implications of prior restraints w
Minnesota ex. rei . Olson.1*9 The Near case involved a Minne
which provided for the abatement, as a public nuisance, of th
publishing "a malicious, scandalous, and defamatory newspap
or the periodical" by process of injunction, unless the pu
demonstrate that he published the truth in good faith.170 In
the statute unconstitutional, the court pointed out that the
of the right to freedom of the press was to prevent previous rest
publication.171 But, the court observed :

[T]he protection even as to previous restraint is not absol

unlimited. But the limitation has been recognized only

165. Supra note 163 at 130.

166. Id. at 134.
167. For a more detailed discussion of this notion, see section IIB(2) of this Article,
infra.
168. See Emerson, supra note 153 at 649. For some early critical commentaries
on the doctrine, see Previous Restraints Upon Freedom of Speech 31 Colum. L.Rev.,
1148 (1931); also, Prior Restraint : A Test of Invalidity in Free Speech cases 49 Colum.
I. Rev. 1001 (1949).
169. (1931) 283 U.S. 697.
170. Although the Minnesota statute was not technically a prior restraint because
it required no previous submission to the newspaper or periodical to government scruitiny,
it is clear that it could operate as such in practice. See Emerson, supra note 153 at 654.

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532 JO URN AL OF THE INDIAN LA W INSTITUTE [Vol. 14 : 4

exceptional cases. . . . (When a nation is at war, for example).

No one would question but that a government might prevent
actual obstruction of its recruiting service or the publication
of the sailing dates of transports or. . . the location of troops,
(similarly), the primary requirements of decency may be enforced
against obscene publications. The security of community life
may be protected against incitements to acts of violence and the
overthrow by force of orderly government.172

These three exceptions to the doctrine against prior restraints, war-time

emergency, obscenity, and sedition, proved to be significant in subsequent
cases in this area.
The imposition of prior restraints on motion pictures was first con-
sidered in the U.S. Supreme Court's landmark decision in Joseph Burstyn ,
Inc. v. Wilson .173 The Burstyn case involved a challenge to the revocation
of licence for the exhibition of the film "The Miracle". The licence was
rescinded by NJew York authorities on the ground that the motion picture
was "sacrilegious" within the meaning of a state law which required the
denial of a license if a film was "obscene, indecent, immoral, inhuman,
sacrilegious or is of such a character that its exhibition would tend to
corrupt morals or incite to crime."174 After concluding that motion pictures
are a significant medium for the communication of ideas and hence are
included within the freedom of expression guaranteed by the First and
Fourteenth Amendments, the court struck down the New York statute on
the ground that its standards were impermissibly vague175 and that it
compelled an unconstitutional prior restraint. On this latter point, the
court observed :

The statute involved here does not seek to punish, as a past

offense, speech or writing falling within the permissible scope
of subsequent punishment. On the contrary, New York (State)
requires that permission to communicate ideas be obtained
in advance from state officials who judge the content of words
and pictures sought to be communicated. This Court recognised
many years ago that such a previous restraint is a form of infringe-
ment upon freedom of expression to be especially condemned.176

The court concluded its discussion of prior restraints on freedom of speech

and expression by noting that a state must assume a heavy burden of
»

171. (1931) 283 U.S. at 713.

172. Id. at 715-16.
173. (1951) 343 U.S. 495.
174. N.Y. Education Law § 122 (McKenney 1947).
175. For a more complete discussion of the vaguencess issue, see text accompany-
ing notes 227-35. infra.
176. Supra note 178 at 503.

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 1972] FILM CENSORSHIP IN INDIA 533

persuasion to justify that its actions come within the exce

maxim against prior restraints.177
The Burst yn decision was followed by a series of per curiam
invalidated certain state and municipal film licensing statutes on
among others, that they imposed Unconstitutional prior r
Similar thoflghts were registered by justices Black and Doug
ing opinions in Kingsley Inťl Pictures Corp. v. Regents .179
The evolving constitutional rule against prior restraints
of film censorship, however, suffered an uncharacteristic re
Film Corp . v. Chicago.1** The petitioner in the Times F
New York corporation which owned the exclusive right
exhibit the film "Don Juan" in the city of Chicago. It
constitutionally invalid on its face, that portion of the Chic
Code which required submission of all motion pictures t
prior to their public exhibition.181 The petitioner had applie
as the ordinance directed and had tendered the licence fee, b
to submit the film for examination. The city then refused
necessary permit and that order was made final on appeal
the sole ground being Times' refusal to submit the film for
In upholding the city's refusal to grant the permit and t
on which it was based, the court initially observed, relying on t
cited in Chief Justice Hughes' opinion in Near , that freedo
not absolute nor are all prior restraints invalid. Borrow

177. Ibid.
178. Gelling v. Texas , (1952), 343 U.S. 960 (per curiam ); Superior Films , Inc. v.
Dept. of Educ. and its companion case, Commercial Pictures Corp. v. Regents , (1953)
346 U.S. 587 (per curiam ).
179. (1959) 360 U.S. 676 at 684, 690, 697. Justices Black and Dauglas main-
tained the opinion that any prior restraint on freedom of speech and expression is uncon-
stitutional under the First and Fourteenth Amendments. This position was cristallized
in the Kingsley Pictures case.
180. Supra note 158.
181. S. 155-4 of the Chicago Municipal Code which read in part :
Such permit (the prerequisite for public exhibition) shall be granted only after
the motion picture for which said permit is requested has been produced at
the office of the commissioner of police for examination or censorship

S. 155-4 also provided a set of substantive standards for gran

If a picture or series of pictures . . .is immoral or obscene
depravity, criminality, or lack of virtue of a class of citizens of
creed, or religion and exposes them to contempt, derision, or ob
to produce a breach of the peace or riots

sioner of police to refuse such permit; otherwise it shall be his duty to

such permit.
Because the petitioner challenged the ordinance on its face, the cou
required to consider the validity of the above standards in terms of the
like in most movie censorship cases. Times' argument claimed moreover, t
of the film in dispute was irrelevant because even if it contained the basest p
or incitement to riot, or forceful overthrow of orderly góvernment, it mus
first be shown without prior restraint.

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534 JO URN AL OF THE INDIAN LA W INSTITUTE [Vol. 14 : 4

from Justice Frankfurter's opinion in Kingsley Books , Ine . v. Brown , the

court stated that "the phrase 'prior restraint' is not a self-wielding sword,
nor can it serve as a talismanic test."182 Rather, the court reasoned, states
and" municipalities must be granted broad authority in this area in order
to effectively choose the best method of protecting their inhabitants against
the dangers of obscenity in the public exhibition of motion pictures. To
this end, the court minimized its traditional role as protector of civil liber-
ties, deferring instead to the prerogatives of state authority :

It is not for this Court to limit the State in its selection of the
remedy it deems most effective to cope with such a problem,
absent, of course, a showing of unreasonable strictures on
individual liberty resulting from its application in particular
circumstances.183

This passage is revealing because it demonstrates the court's seemingly

abrupt reversal of its previous stance on the burden of persuasion that a
state must assume in proving the validity of its use of prior retraints.
Whereas in previous cases the state was required to assume a heavy burden
of proof within limited exceptions to the doctrine against prior restraints;
under the Times Film standard a state apparently need only show that the
use of prior restraints was the most effective method for dealing with the
problem at hand - not a very difficult burden in the light of the efficacious
nature of prior restraints.184 Moreover, it now appears that the exhibitor
of films must assume the burden of showing that the application of prior
restraints in the particular circumstances, at hand, resulted in the imposition
of "unreasonable strictures on individual liberty." Seen in this light, the
Times Film opinion seems to be very much at odds with the original presump-
tion against prior restraints formulated in Near and subsequent cases.
The majority opinion's dissonance with previous doctrine was not
overlooked by the four out of nine members of the court who dissented
from the Times Film decision. In an exhaustive dissenting opinion written
by Chief Justice Warren, and joined by justices Black-, Douglas andBressnan,
both the history behind and the reasons for the doctrine against prior
restraints were thoroughly discussed.185 The minority opinion in Times
Film in retrospect may prove tobe the prevailing doctrine as greater inroads
are made in the majority view; but in any event the close division of the
court points up the unsettled state of the doctrine even up to recent time,
Exceptions to the majority opinion in the Times Film case were not

182. Kingsley Books, Inc. v. Brown , (1957) 354 U.S. 436, 441 (Frankfurter, J.)
cited in 365 U.S. at 49.
183. Supra note 158 at 50. For a discussion of the view that the unique dangers
or problems presented by the medium of motion pictures may justify state imposition
of prior restraints, see H. Clor, Obscenity and Public Morality 53 (1969).
184. See the text accompanying notes 155-161 supra.
185. For a discussion of some pfthege reąsoas see tłje tejçt accompanying nptçs
J 57-Í 61 supra .

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 1972] FILM CENSORSHIP IN INDIA 535

lóng in coming. Four years later, in Freedman v. M

decision was distinguished and the presumption ag
reinstated. Freedman involved a challenge of the co
Maryland motion picture censorship statute, which
of all films prior to public exhibition, to the State
The state conceded that the picture sought to be exh
did not violate the statutory standards and would
if properly submitted.
In reversing the appellant's conviction, the Su
opinion written by justice Breunan, struck down th
cedural grounds : (1) upon the censor's disapproval o
must assume under the statute, the burden of instituti
and of persuading the courts that the film is protec
the censor has acted against a film, exhibition is pro
review, however protracted, and (3) the statute aff
prompt judicial determination. The court furthe
reliance on the Times Film case was misplaced because t
was "whether a prior restraint was necessarily unc
circumstances ,"188 Here, in contrast, the issue
restraint imposed was invalid in the context of th
presented certain other dangers of unduly supressin
e.g. , time consuming procedures, wrongly placing the
and persuasion on the exhibitor, and providing no
judicial review.189 While the basic holding of th
been left unimpared, Freedmän and Bantam Books
it beyond practical applicability, or at least singifica
reaching import. Moreover, the Freedman decision r
bias against prior restraints, saying : "Any system o
to this Court bearing a heavy presumption aga
validity."190
While the present status of the doctrine against prior restraints in the
American constitutional law may be relatively confused, an analysis of the
above decisions, in conjunction with earlier arguments, does militate against
the facile generalization, such as that proffered by the Supreme Court in
Abbas , that pre-censorship or prior restraints is merely one undifferentiated
aspect of censorship in general. A new, more analytical approach to the
problems posed by pre-censorship of motion pictures in India is clearly called
for in future decisions.

186. (1965) 380 U.S. 51.

187. Maryland Ann. Code, art. 66A, § 2 (1957).
188. Citing Bantam Books , Inc. v. Sullivan, (1963) 372 U.S. 58, 70, n. 10, (1965) 380
U.S. at 53.
189. (1965) 380 U.S. 53 at 55.
190. Quoting from Bantam Books , Inc. v. Sullivan , (1963) 372 U,S. 58, 70 ; (1965)
380 U.S. at 57.

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536 JO URN AL OF THE INDIAN LA W INSTITUTE [Vol. 14 : 4

2. Should motion pictures be treated differently than other mediums of

artistfc expression?

A second major premise of the court's opinion in the Abbas case was
that motion pictures should be treated differently and more rigorously
censored than other forms of art and expression. "This arises," the court
said, "from the instant appeal of the motion picture, its versatility, realism...
and its co-ordination of the visual and aural senses."191 While it is undeni-
ably true that motion pictures do influence sensory awareness in ways that
may be different from other mediums of expresssion,192 the salient issue is
whether their capacity for altering thinking- and behaviour is so vastly diffe-
rent and more effective than other mediums of communication that they
should be subject to more stringent legal restrictions. Even assuming films
do possess such a capacity, a second question arises as to whether effectiveness
should be a relevant consideration in adjudging the permissible bounds of
expression that will be tolerated in a particular society.
Many commentators, both in India and the United States, ha' e assumed,
almost, a priori , that motion pictures possess a singular "capacity for evil,"
alone and beyond other mediums of communication.193 In contrast, other
commentators have observed strong similarities between the impact of books
and films. For example, Marshall McLuhan, the renowned media specialist,
has noted:

The close relation... between the reel world of film and the
private fantasy experience of the printed word is indispensable
to our Western acceptance of the film form. Even the film indus-
try regards all of its greatest achievements as derived from
novels, nor is this unreasonable. Film, both in its reel from and
in its scenario or script form, is completely involved with book
culture. All one need do is to imagine for a moment a film based
on newspaper form in order to see how close film is to book.194

191. Ks A. Abbas v. Union of India , supra note 6 at 489.

192. See Khosla Report at 68-69.
193. See e.g., Hafizji, Are Western Films Corrupting Our Youth, The Illustrated
Weekly of India, Mar. 19, 1972, at 42-43; H. Clor, Obscenity and Public Morality 52-54
(1969). Thus, as Clor has written:
A prurient appeal experienced in private and a prurient appeal experienced in
public may constitute two different experiences and it could often be the case
that an event described in a book would not promote the lust of the average
reader while the same event presented on the screen would promote the lust of
the average viewer. Likewise, the experience resulting from exposure to some
particularly "suggestive" scene in a film might well be similar to that resulting
from the reading of pornography.
Id. at 54. In attempting to demonstrate the unique capacity of motion pictures
for creating "appeals to prurient interests," Clor appears to negate his own point by
drawing the parallel to the reading of pornography - which is nothing other than reading
a book. On the contrary, then , his analysis points up the similarities between films and
books in so far as they have a capacity for deteripg thinking and, impliedly, behaviour.
194. M. Molvhan, Understanding Media ; The Extensions of Mm 250 (2nd ed.
1964). But see H. Clor, supra note 193 at 52.

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1972] FILM CENSORSHIP IN INDIA 537

If stich a relationship does indeed exist, it follows that films n

jected to any more rigorous scrutiny and censorship than
books and other printed works. At present, however, the
no solid data on the question,195 and in light of this it shou
the authority of the film censor to make such a determination
On the other hand, the argument that motion pictures
cular capacity to influence thought and behaviour, even if a
tends to corroborate the view that films are a significant form
entitled to thoroughgoing constitutional protection.197 Th
motion pictures as communicators of ideas and as organs of
is related not only to the increasing trend to project social
screen,198 but also to the technical features of the medium
varied and often intense expression of ideas.199 Hence, eve
the impact of motion pictures is greater than that of other
constitutes no basis for the argument that motion pictures
to greater suppression; on the contrary, it arguably calls
conclusion.200
In the United States, the notion that motion pictures by their very
nature possess a unique capacity for causing "evil" thoughts and behaviour
has been subject to a rather perplexing history. The idea was initially
proffered in the original film censorship decision by the U.S. Supreme Court

195. See comment, Exclusion of Children From Violent Movies 67 Colum. L .

Rev. 1149 at 1164 (1967).
196. Justice Douglas of the U.S. Supreme Court voiced a similar view when he
stated :
[M]otion pictures are of course a different medium of expression than the
public speech, the radio, the stage, the novel, or the magazine

one may be more powerful or effective than another. The movie, like t
speech, radio, or television is transitory - here now and gone in an
The novel, the short story, the poem in printedform are permanently
to re-enact the drama or to rétell the story over and over again. Which
will give the most excitement and the most enduring effect will vary
theme and the actors. It is not for the censor to determine in any ca
Superior Films v. Dept. of Educ., Commercial Pictures Crop . v. R
346 U.S. 587, 589 (per curiam) (concurring opinion).
197. Thus, as the U.S. Supreme Court observed in Joseph Burst y n,
It cannot be doubted that motion pictures are a significant medium
communication of ideas. They may affect public attitdes and beh
a variety of ways ranging from direct espousal of a political or social d
to the subtle shaping to of thought which characterizes all artistic ex
The importance of motion pictures as an organ of public opinion is not
by the fact that they are designed to entertainain as well as inform.
(1951) 343 U.S. 495, 501.
198. An excellent example of this trend in India is the documentary
of Four Cities, "produced by K.A. Abbas and the subject of the recent
Court decision. See the text preceding note 124 supra for a discussion o
199. See note, Motion Pictures and the First Amendment 60 Yale
(1951).
200. See Times Film Corptu v. Chicago , supra note 158 at 77 (Warren, J., dissenting).

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538 JO URN AL OF THE INDIAN LA W INSTITUTE [Vol. 14 : 4

in Mutual Film Corp. v. Industrial Comrďn of Ohio.201 The Mutual Film

decision was overruled several years later by Joseph Burstyn, Inc. v. Wilson .202
In Burstyn , the court, although not rejecting outrightly the notion that films
have a unique capacity for evil, nevertheless, held that in any event sucha
fact should not disqualify motion pictures from constitutional protection.203
The court went on, however, to note in dictum that motion pictures are not
"necessarily subject to the precise rules governing any other particular method
of expression" because each "method tenses to present its own peculiar
problems."204 But the court failed to delineate either the special rules
required for films or the "peculiar problems" created by motion pictures.
Nor did the opinion deal with the logical problem posed by the court's
dismissal of the "unique capacity for evil" idea, yet saying that films should
be subject to different rules (because of their unique capacity ?). The
"unique capacity for evil" argument was soundly assailed by individual
justices in later decisions,205 and was purposely neglected in others.206 Finally,
Interstate Circuit , Inc. v. Dallas ,207 gave some support to the argument
that motion picture may possess a greater capacity for evil among young
persons than other modes of expression, and hence the state may more
rigorously regulate films as to such a class rather than as to adults.208 But
again we are not told why or how films possess a greater capacity for influenc-
ing youig minds, much less those of adults - it is simply assumed. Such unsub-
stantiated and unanalyzed presuppositions, however, make for a bewildering
array of dicta that often tend to undermine the preservation of civil liberties.
Certainly, the prosaic approach of the U.S. Supreme Court on this question
underlines this point. Indian courts would do well to ensure that the same
censorship rules are applied to motion pictures as to books, newspapers and
other mediums of communication unless and until the contrary conclusion
is substantially proved.
3« Procedural inadequacy of the Film Code
In the Abbas case, the court declined to go into the matter of the pro-
cedural inadequacy of the Film Code on the assurance of the Solicitor-

201. (1915) 236 U.S. 230. There, Justice McKenna, speaking for the court, wrote
that :
[Motion pictures ] are mere representations of events, of ideas and sentiments
published and known; vivid, useful, and entertaining, no doubt, but... capable
of evil, having power for it, the greater because of their attractiveness and
manner of exhibition.
Id. at 244.
202. Supra note 173.
203. Id. at 502.
204. Id. at 502-03.
205. See Superior Films v. Dept. of Educ. ; Commercial Pictures Corp. v. Regents ,
(supra note 196, at 589 (per curiam) (Douglas, J., concurring); Times Film Corp. v.
Chicago , (supra note 158 at 77 (Warren, J., dissenting).
206. See Kingsley Inťl Pictures Corp. v. Regents , supra note 179 at 689-90.
207. (1968) 390 U.S. 676.
208. Id. at 690.

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 1972] FILM CENSORSHIP IN INDIA 539

General that legislation would be effected in the near fu

time-limits for the decisions of tl'e film censors and f
to a court of law or independent tribunal rather than
ment.209 Unfortunately, little has been done to impleme
despite court prodding and heated criticism from the fil
Assuming appeal to a judicial tribunal were provided
standards, derived from the U.S. Supreme Court's dec
Maryland ,212 might also be implemented to further
artistic expression in films. First, the burden of pr
improtected expression and hence not entitled to a lic
entitled to an "A" certificate should rest on the cens
Secondly, the exhibitor must be assured by the code
judicial construction that the film censors will, within a
either issue a licence (of either type) or restraint its
any interim restraint imposed in advance of a final jud
the merits must be limited to the preservation of th
shortest fixed period compatible with sound judi
finally, the procedure should assure prompt and final
Apart from providing for quick determination and
at least two other changes should be effected in the c
First, records should be kept of the deliberations of the
both after viewing the film in question and during in
the applicant, and of other bodies concerned with th
such as the revising committee and the relevant bra
of Information and Broadcasting. Aside from provid
record upon which an appeal court or other independe
a more informed decision on the merits of a particular
on a film, the keeping of records will also tend to all
nature of film censorship in India, which usually is a s
the right to. freedom of expression, and, doubtless, cr
fear and mistrust of the censorship authorities. It app
that if the reasoning and deliberations of the censor are
public, it will be less inclined to overreach his authorit
protected speech. These considerations would see

209. Supra note 6 at 485.

210. Government officials claim that consideration is being given to the proposed
changes in the film censorship procedure, but it may take some time before any tangible
effects are achieved. See Amladi, From 'Fillums* to Films : An Interview with Mrs.
Nandini Satpathy, Minister of Information and Broadcasting. Supra note 5.
211. See Khosla Report . 86-7.
212. (1965) 380 U.S. 51.
213. Id. at 58-9. See also Jietel Film Corp. v. Cusack , (1968) 390 U.S. 139 (per
curiam).
214. The first step in providing for appeal to a court of law would be to rescind
s. 7F of the Cinematograph Act, which provides a bar on legal proceedings against the
central government or members of the Film Censorship Board for any decision concluded
in good faith under the Act.

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540 JO VŘNAL OF THE INĎÍAŇ LA W ÎNSTlTuTE [Vol. 14:4

least in the larger picture, any of the advantages that may accrue to an appli-
cant for a film licence from the informal "give and take" of backdoor, private
bargaining. Secondly, the examination procedure might be considerably
improved if the film producer or his representative were allowed to be present
at the preview of the film before the examining committee, where he would
be allowed to present his views and explain the film either during or imme-
diately after the screening. Since lasting impressions are often created at
the initial contact with the film, it seems rather important that the producer
should be able to present his views and understanding of the film at this
time.215

4. Are the substantive rules of the Film Code reasonable restrictions under
article 19(2) of the Constitution?

Even assuming the Film Code was administered in a procedurally

"reasonable" manner, it still could be held unconstitutional on the ground
that its substantive rules were "unreasonable restrictions" on freedom of
speech and expression under article 19(2). 216 In Abbas , the court held that
the censorship rules were not unconstitutionally "void for vagueness," and,
without really delving into the matter, further suggested that the directives
were not "unreasonable restrictions." The court did comment, however,
on the lack of any directions which would tend to promote and preserve
artistic expression, suggesting that the government adopt some of the princi-
ples formulated in relation to obscene books in Ranjit Udeshi v. State of
Maharashtra .217 But in retrospect the court's analysis seems particularly
unsatisfying if only for its incompleteness of analysis. For this reason,
this section will consider, as an initial point of departure of the constitutional
tests that have evolved in relation to the "reasonable restriction" clause and
will then look to its application to the substantive rules of the Film Code,
including in this regard the "void for vagueness" doctrine.
The concept of "reasonable restriction" as a justiciable issue has been
extensively developed in Indian constitutional jurisprudence and involves

215. Several Indian decisions have held that the requirement of "reasonableness"
dictated by art. 19(2) and (6) of the Constitution includes both substantive and poce-
dural "reasonableness". See State of U.P. v. Baboo Lai , A.I.R. 1965 All. 571; Madanlal
Kapur v. State of Rajasthan , A.I.R. 1953 Raj. 162. It is not clear, however, whether the
keeping of records or allowing the film producer to present his views at the censorship
screening would be required by the notion of "procedural reasonableness". In the
above two cases, the statutes in question either allowed the governmental authority to
make a purely arbitrary and subjective determination regarding the permissible scope
of freedom of expression without providing any appeal procedure, or, on the other hand,
did not give any issue of notice or opportunity to make a representation when fundamental
rights were in danger of governmental infringements. This, of course, is not the situa-
tion under the Cinematograph Act where, for example, the applicant for a film licence
does get an opportunity to make a representation before the Board at several places in the
administrative process.
216. See Collector of Customs v. Chetty , A.I.R. 1962 S.C. 316.
217* Supra note 142.

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1972] ttLM CÈNSORStilP JŃ IŇĎIA 54l

a number of factors or tests.218 First, it is clear that a r

fundamental right must be for one of the purposes mentio
under which the restriction is being imposed.219 Beyond th
limitation the courts must consider the following factors: t
extent of the restrictions, the circumstances and the mann
imposition has been authorized, the nature of the right infring
lying purpose for the restriction sought to be imposed, th
urgency of the evil sought to be remedied, the excessiveness or
of the imposition, and the prevailing conditions at the time wh
tion is implemented.220 Moreover, it has been held tha
"reasonable," a restriction must have a rational relation to
the legislation seeks to achieve and must not go in excess o
A determination by the legislature as to what constitu
restriction is not final or conclusive, but rather is subject t
of the courts.222 The courts have also held that with respec
of "reasonableness", a state may have greater power to deal
rather than the written word presumably because the spo
influence action and behaviour with greater alacrity than the w
In essence, then, a restriction to be reasonable must be of the m
and nature necessary to achieve that aim in view, keeping in
standards and background of the Indian society. Thus
Commission has stated:

[TJhe scope of censorship and of any code drawn up for the

purpose must not exceed the limit of reasonableness as judged by
our present-day courts in the background of the thoughts, habits
and behaviour of present-day reasonable men and women. The
law is enacted for universal application, taking as far as possible
reasonable universal norms for basis, and not for the few who may
be prone to delinquency, possess anti-social tendencies, or may
entertain distorted notions of propriety and human conduct.224

218. See Khosla Report, supra note 5 at 48-51.

219. See M.P. Jain, supra note 9 at 522. For example, art. 19(2) permits the state
to impose reasonable restrictions in the interests of the security of the state, friendly
relations with foreign states, public order, decency or morality, contempt of court, de-
famation, or incitement to an offence.
220. See Khare v. Delhi , A.I.R. 1950 S.C. 211; Chintamanrao v. State of Madhya
Pradesh , A.I.R. 1951 S.C. 118; State of Madras v. Row, A.I.R. 1952 S.C. 196; Prasad
v. State of Uttar Pradesh, A.I.R. 1954 S.C. 224; Virendra v. State of Punjab, A.I.R. 1957
S.C. 896; Nadar v. State of Madras ; A.I.R. 1959 S.C. 300; Kumar v. India, A.I.R. 1960
S.C. 430; Hakim v. State of Bihar, A.I.R. 1961 S.C. 448.
221. See Chintamanrao v. State of Madhya Pradesh, supra note 220; Nadar v . State
of Madras, supra note 220.
222. See Chintamanrao v. State of Madhya Pradesh , supra note 220; Hakim v. State
of Bihar, supra note 220.
223. See State of Uttar Pradesh v. Baboo Lai, supra note 215.
224. Khosla Report at 109. See also Ramachandran, The Test of Reasonable
Restriction in Art. 19 of the Indian Constitution 40 A.I.R. Journal 79 (1953) ;
Upadhyaya, Sociological Theory of Reasonableness 9 Indian Advocate 61 (1969).

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54Ź JOVRNAL OF THE INDIAN LA W INSTITUTE [Vol. 14 : 4

Given these norms and the requirement that restrictions on the right to
freedom of speech and expression must be of the most minimal possible
scope; the question then becomes whether some, if not all, of the substantive
rules of the Film Code are so overreaching and all inclusive as to amount to
the sort of "unreasonable restrictions'- disallowed by article 19(2) of the
Consituttion.
Assuming that the rules of the Film Code were promulgated with the
end of preventing the corruption or moral demise of movie-going audiences
in India, it appears that many of the particular directives have little, if any,
proximate relation to maintaining this end. In a related field, for example,
it has been shown that there is no scientifically significant correlation between
the reading of clearly pornographic material and any overt anti-social
behaviour.225 If this be true, then the same argument should apply a
fortiori to a great many of the scenes which are considerably less explicit than
hard-core pornography, yet nevertheless banned by the rules of the Film
Code. It seems hardly conceivable, for example, scenes of a nude
statue or painting, a kiss, a dancer in tight pants, a baby sucking its mother's
breast, a glancing shot of the Bombay red-light district, or scenes of persons
with venereal disease could corrupt the morals of mature Indian men and
women. Yet nevertheless such scenes have been expurged from Indian
films on the basis of relevant provisions of the Film Code. Instead of appro-
ximating generalized norms of morality and social behaviour, these rules
appear tobe formulated to protect persons of extra-sensitive or prudish per-
sonalities. If such rules are not rationally related to the end sought to be
achieved, and are not based on generalized norms of proper conduct in the
context of present-day Indian values, then by virtue of their overreaching
nature they should be adjudged as "unreasonable restrictions" on the right
to freedom of speech and expression in motion pictures. If properly handled
descriptions of sex and nudity are constitutionally protected expressions in
Indian literature,226 there seems to be no reason why similar protection ought

225. See Cairns, Paul; Wishner, Sex Censorship, The Assumptions of Anti-
Obscenity Laws and the Empirical Literature, the Law of Obscenity and the Constitution
38 Minn. L. Rev. 295 (1954); H. Clor, Obscenity and Public Morality 136-56 (1969);
Rathnam, Obscene Posters, Literature and publicities 1 M.L.J.> 17, 19 (1965) ; Chitre,
Time of the Assassins, in The Roots of Obscenity 14-16 (1968). Leckhart, Findings
and Recommendations of the Commission on Obscenity and Pornography: A Case Study
of the Role of Social Science in Formulating Public Policy 24 Okla. L. Rev . 209 (1971).
The Federal Commission on Obscenity and Pornography found, according to Professor
Lockhart who was a member of the Commission, that in the case of adults, exposure to
explicit sexual material plays no significant role in causing social or individual harm,
either in sexual behaviour or attitudes toward sex and sexual activity. In fact, the Com-
mission obtained some data which indicated that exposure to explicit sexual material
may improve constructive communication about sex among marrid couples and may
help to produce more satisfactory sex relationships. Id. at 16-18. While these studies
were conducted in the United States, which concedely may have more liberal standards
with respect to sexual activity, there appears no reason why at least the general conclusions
might not be applicable in large measure to adult men and women in India.
226. See Ranjit Udeshi v. State of Maharashtra , supra note 142.

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1972] FILM CENSORSHIP IN ÍNĎÍA $43

not to be accorded to comparable scenes in Indian motio

is one area which should be more fully analysed by the
future cases concerned with the constitutionality of film ce
A farther issue considered by the court in Abbas was whe
or directions of the Film Code were unconstitutional
vagueness. In concluding that they were not, the court d
process'* approach of the U.S. courts in favour of a "wi
understanding of the average man" test.227 On the basi
the court held that expressions such as "seduction",
traffic in women," etc . were not unconstitutionally vagu
be true that not all of the Film Code's directives are "vo
there cfertainly are many which may put the persons ap
"a boundless sea of uncertainty."229
But before taking up the question of these apparently
might be well to first examine why vague directions can
to legitimate expression. Perhaps the best answer to thi
forth by justice Frankfurter of the U.S. Supreme Court
Kingsley International Pictures Corp . v. Régents :

The legislation must not be so vague, the language

as to leave to those who have to apply it too wide a d
for sweeping within its condemnation what is permissible
sion as well as what society may permissibly withhol
remembering that the widest scope of freedom is to be g
adventurous and imaginative exercise of the human s
have struck down legislation phrased in language int
vague, unless it be responsive to the common unders
men even though not susceptible of explicit defin
ultimate reason for invalidating such laws is that the
timidity and inertia and thereby discourage the boldness
sion indispensable for a progressive society.230

Beyond this, vague standards encourage erratic and arbitr

whether the censor be administrative or judicial, and ind
become the yardstick of action, resulting in regulation in ac
beliefs of the individual censor rather than regulation b
these reasons that the U.S. Supreme Court has invalidat
as "sacrilegious.,"232 "prejudicial to the best interests of

227. Supra note 6 at 497.

228. Ibid. See also text accompanying notes 136-40 supta.
229. Supra note 6 at 496. The expression ccmes from the U.S.
decision in Joseph Burst yn, Inc. v. Wilson , supra note 173 at 504-05
230. Supra note 179 at 694-95 (Frankfurter, J., concurring).
231. See Inter-state Circuit , Inc. v. Dallas , (1968) 390 U.S. 676, 6
232. Joseph Burstyn , Inc. v. Wilson, supra note 173.
233. Gelling v. Texas , 157 Tex. Crim. 516, 247 S.W. 2d 95 (1952
(1952) 343 U.S. 960.

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544 JO URNAL OF THE INDIAN LA W INSTITUTE [Vol. 14 : 4

"immoral" and "[tending] to corrupt morals,"234 and "harmful".236

Even presupposing the applicability of an "average man" standard,
could not the same arguments be levied against the expressions such as
"undermining] the accepted canons of decency," "depictfing] vice or
immorality as attractive," "lowering] the sacredness of the institution of
marriage," "scenes suggestive of immorality," "fomenting] social unrest
or discontent to such an extent as to incite people to crime," and "wounding
the susceptibilities of any foreign nation," all of which appear in the Film
Code. In the light of the great diversity in customs, behaviour and values
which one encounters in India, it appears particularly presumptuous to
speak of "accepted canons of decency" and ."immorality." Moreover,
what acts, for example, "lower the sacredness" of marriage - a quarrel
between husband and wife, expounding the benefits of divorce or non-
institutionalized living arrangements between a man and a woman? If so,
such a restriction would seem to seriously infringe upon the right to express
freely ideas 9 however, novel or radical. But aside from these considerations
the chief infirmity of such directions resides in the fact that they offer an
almost unlimited licence to the censor to expurge from films any particular
scene he wishes, predicated merely upon his own preconception of what
these terms signify. Hence, these expressions hold forth all the latent
dangers inherent in the concept of vagueness and cannot be met by such
facile generalizations as those proffered by the court in Abbas .

5. Obscenity : towards a new standard in movie censorship

Some mention should be made of the court's suggestion in Abbas

that the censorship authorities adopt the principles of censorship of literature
formulated in Ranjit Udeshi v. State of Maharashtra .236 It is not clear,
however, from the Abbas opinion whether the court was snggestinv; that
obscenity becomes one of the standards of film censorship although it is
one of the principles mentioned in the opinion.237 To adopt obscenity as the
single criterion for adjudging permissible expression in motion pictures as
is done in the United States238 would alleviate many of the problems that
attend an exhaustive set of directions such as one encounters in the present
code: inflexibility, arbitrariness, etc.. On the other hand, a detailed code
serves to delimit the boundaries of a censor's subjective discretion, which is
itself an important consideration in preserving civil liberties.
While adoption of the obscenity standard might permit greater consi-
deration of artistic values and social worth in films, it would not be without

234. Commercial Pictures Corp. v. Regents , 305 N.Y. 336, 113 N.E. 2d 502
(1953), rev' d per curiam (1954) 346 U.S. 587 ; Hombly Prod., Inc. v. Vaughn, , (1955) 177
Kan. 728, rev* d per curiam (1955) 350 U.S. 870 .
235. Superior Films, Inc. v. Dept. of Educ ., 159 Ohio St. 315, 112 N.E. 2d 311
(1953), rev'd per curiam (1954) 346 U.S. 587.
236. Supra note 142.
237. See the text accompanying notes 147-52 supra.
238. See e.g., Jacobeiiis v. Ohio . (1964) 378 U.S. 184.

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19721 FILM CENSORSHIP IN INDIA 545

its attendant difficulties. Despite nearly a century of litigatio

test for obscenity, like its American counterpart, remai
seemingly incapable of authoritative resolution.240 But un
American jurisdictions, Indian courts have been unable to d
of the now archaic Hicklin test, formulated by Chief Justice
British case of Regina v. Hicklin ,241 There, the Chief Just
test of obscenity in the following words:

I think the test of obscenity is this, whether the tendency

matter charged as obscene is to deprave and corrupt tho
minds are open to such immoral influences, and into whose
a publication of this sort may fall

would suggest to the minds of the young of either sex, or eve

persons of more advanced years, thoughts of a most impur
libidinous character.242

Faithful to the Chief Justice's maxim, Indian courts, over the

proved to be overly preoccupied with the presumed relation
reading or viewing obscene material and the creation of "imp
dinous" thoughts - certainly an area of psychology where cour
else for that matter, can claim but little competence.243 Mor
courts had continued to adhere, with some exceptions, to the "
ble persons," interpretation of the Hicklin test.244

239. The question of obscence literature was first considered in India

of Empress v. Indas man, (1881) I.L.R. 3. All 837.
240. For a critical account of the confusion that has resulted from th
Court's attempt to grapple with the problem of obscenity in literature and
see note, Obscenity and the Supreme Court : Nine Years of Confusion 1
167 (1966). See also Gerber, A Suggested Solution to the Riddle of Ob
Pa. L.R. 834 (1964); Elias, Sex Publications and Moral Curruption : The
Dilemma Mary L. Rev . 302 (1967).
241. (1868) L.R. 3 Q.B. 360. In the United States, the Hicklin test, after being
subject to considerable judicial criticism over the years, was finally rejected in Roth v.
United States , (1957) 354 U.S. 476. In Britain, the test was dispelled in effect by the
Obscene Publications Act of 1959, 7 & 9 Eliz. II Ch. 66 (1959). For a more complete
discussion of the history of the Hicklin test in the United States, see generally Moreale,
Obscenity : An Analysis and Statutory Proposal 1969 Wise. L. Rev. 421, 422-23 (1969);
Gerber, supra note 240 at 836-37; H. Clor, supra note 225, at 16-23. For a discussion
of the test in Britain see H. Hyde, A History of Pornography 172 (1964).
242. (1868) L.R. 3 Q.B. 360 at 371.
243. See, e.g., Emperor v. Thakar Datt , A.I.R. 1917 Lahore 228; Public Prosecutor
v. Mar,kondeyulu , A.I.R. 1918 Mad. 1196; Acharya v. Emperor , A.I.R. 1932 Cal. 651 ;
Saksena v. Emperor , A.I.R. 1940 Cal. 290; Halder v. State of West Bengal , A.I.R. 1952
Cal. 214; Ramamurthy v. State of Mysore , A.I.R. 1954 Mys. 164; Shanker & Co. v. State
of Madras , A.I.R. 1955 Mad. 498; State of Maharashtra v . Shah , A.I.R. 1956 Bom. 32
State of Andhra Pradesh v. Thakur Prasad , A.I.R. 1959 A.P. 49; Prim v. State of West
Bengal A.I.R. 1961 Cal. 177.
244. See Acharya v. Emperor , supra note 243 ; Shanker &. Co. v. State of Madras ,
supra note 243 ; State of Andhra Pradesh v. Thakur Prasad , supra note 243. But see Saksena
t. Emperor , supra note 243; Haider v. State of West Bengal , supra note 243; Ramamurthy

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546 JO URNAL OF THE INDIAN LA W INSTITUTE [Vol. 14 : 4

Against the backdrop of extensive constitutional litigation on the

subject, the court in Udeshi sought to give a definitive pronouncement on
the question of obscenity. The case, itself, involved the prosecution of a
Bombay bookseller for having sold a cope of D.H. Lawrence's Lddy Chdtt -
erley's Lover allegedly in violation of section 29 of the Indian Penal Code,
which prohibited the sale or distribution of obscene materials.245 Without
attempting a complete exegesis of the case, it may be possible to set forth some
of the basic principles announced by the court with respect to the notion of
obscenity. The court first held that "treating with sex and nudity in art and
literature cannot be regarded as evidence of obscenity . without something
more."246 After explicitly stating its adherence to the Hicklin test on the ground
that it "makes the court the judge of obscenity in relation to an impugned
book. . .and lays emphasis on the potentiality of the impugned object to deprave
and corrupt by immoral influences,"247 the court went on to note that while
a consideration of the work as a* whole may be necessary, the. allegedly
obscene portion of the material in question must be considered separately
in order to determine whether it meets the test of obscenity. In instances
where art and obscenity are intermixed, a book can escape liability only where
the art is predominating "as to throw the obscenity into a shadow or the
obscenity is so trivial and insignificant that it can have no effect and may be
overlooked."248 In proposing a test to determine whether a particular
material may have an "effect" on individuals, the court appeared to settle
in favour of "the most susceptible person" interpretation of the Hicklin
standard. To this end, the court opined :
[TJreating with sex in a manner offensive to public decency and
morality.,. judged of (sic) by our national standards and consi-
dered likely to pander to lascivious, prurient or sexually precocious
minds, must determine the result.249

Finally, the court attempted to summarize its entire position on the question
of obscenity by way of the following test:

In our opinion, the test to adopt in our country (regard being had
to community "mores") is that obscenity without a preponderat-
ing social purpose or profit cannot have the constitutional protec-
tion of free speech and expression and obscenity is treating with
sex in a manner appealing to the carnal side of human nature, or
having that tendency.250

v. State of Mysore , supra note 243. In the following cases both of the above approaches,
i.e., the "most susceptible person" and "the average man" standard appear to be inter-
mixed in a perplexing array of judicial tests : State of Maharashtra v. Shah , supra notę
243; Prim v. State of West Bengal , supra note 243.
245. I.P.C., s. 292.
246. Supra note 142 at 887.
247. Id. at 888.
248. Id. at 889.
249. Ibid.
250. Ibid.

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1972] FILM CENSORSHIP IN INDIA 547

While maintaining the "tendency" to deprave and corrupt or

of the Hicklin standard, the Udeshi test does modify it in term
additional consideration of "social purpose or profit."251
Despite the additional value or protection given to artist
under the above test, difficult interpretative problems neve
How, for example, can any objective calculus be defined wh
mine in cases where art and obscenity are mixed that either art
predominates to the exclusion of the other? How can a cou
determine what are "community mores" in a country so div
morals and life-styles such as India?' What are "prepon
purposes," and what are their parameters? What constitut
side of human nature"? To what extent must material appea
in order to approximate a tendency? The salient point is t
derations admit the only uniquely subjective value judgme
of those seeking either to censor material (in the case of ad
review the decisions of the censors (in the case of courts).
stitute such principles for the multiplicity of rules and d
current Film Code would be to purchase flexibility and gre
of artistic epression at the cost of subjectivity, which hol
promise of increasing censorial power to a significant degr
Moreover, while film makers may be given greater lenien
with themes of sex and nudity; on the other hand, they wo
restrictive principles such as considering scenes apart from
film in order to determine whether it is obscene and the "susce
standard apparently maintained in the Udeshi case. The lat
cularly fettering notion insofar as, in focusing on those w
prurient or sexually precocious minds," it seeks to determ
expression on the basis of the least capable and idiosyncrati
society.252
In sum, then, it should be realized that an addition or substi
obscenity rules formulated in the Udeshi case for the curren
the Film Code will not be without its disadvantages. Ass
liberal advances in the law of obscenity, however, such a substi
in order, especially in light of the dubious constitutionality
Film Code. This section has not been planned as a compreh
of the law of obscenity in India, but rather as a brief forum fo
questions which appear to be pertinent to a consideration o
potential new standard for the censorship of motion pictur

251. See Chaudhari, The Test of Obscenity in the Ranjit Udeshi

L.J . 73, 76 (1969).
252. For other critical reviews of the Udeshi decision see Sarkar
Obscenty 67 Bom. L.R. 121 (1965); Chaudhari, supra note 251 ; Grover,
and Freedom of Expression 3 J.C.P.S. 6 (1969); J. Mallik, Law of Obsce
(1966); A. Sarkar, The Law and Obscenity 39-63 (1967); Sharma, Obsce
in The Roots of Obscenity (A, Shah ed. 1968).

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548 JO URN AL OF THE INDIAN LA W INSTITUTE [Vol. 14:4

III. Some alternatives to the present form of film censorship in India

A. The American experience: self-censorship by the motion picture industry

Despite the Khosla Committee's rejection of voluntary self-censorship

by the motion picture industry as an effective means for regulating the content
of films in India,253 it may be instructive to review the American experience
of industry regulation because it offers a potential future alternative to
government censorship of films in India. While the film industry's regula-
tory bodies in the United States have recently shown perceptible signs of
atrophy, it seems clear that, given the proper conditions, the film industry
can be a viable extra legal regulator in the context of motion pictures. To
say this, however, is not to suggest that voluntary regulation present no
legal or potential constitutional problems, or that it makes for greater free-
dom of expression in motion pictures. On the contrary, industry regulation
may pursue censorship with a more relentless zeal than governmental bodies
precisely because it is not subject to the full panoply of constitutional
restraints that serve to hold the hand of state ensors.254

1. The early history of industry selfoegulation : the prelude to

age-classification

Voluntary censorship of films in the United States originated as early

as 1909 under the auspices of an advisory body known as the National
Board of Censorship. Like most organizations of this nature it relied on
voluntary agreement for the observance of rulings, prompted, no doubt,
by the indusry's perennial apprehension of state imposed film censorship.
Various attempts to introduce government regulation of motion pictures at

253. Khosla Report , supra note 5 at 98. The committee rejected the self-censorship
approach on the grounds that there exists too much petty competition within the industry
for it to function effectively as a watchdog of film contents and that motion picture pro-
ducers are too pecuniarily - oriented to disavow erotic themes, which often make for
successful films. Id. at 96-98. These reasons appear somewhat less than persuasive in
light of the fact that such conditions characterize motion pictures industries throughout
the world - even in countries like the United States where, up until quite recently, volun-
tary self-regulation by the industry had proved to be recognizably effective. But perhaps
the most surprising finding published by the Khosla Committee was the results of its
general questionnaire which revealed the following statistics : 81% of the respondents
believed that government censorship of motion pictures was necessary becaure of the
country's present state of under-development, while 67.6 per cent expressed the view that
the film industry as presently constituted would be incapable of satisfactorily censoring
their own films. Id. at 85. These replies seem to give at least some popular support to
the committee's conclusions.

254. For an exellent discussion of the history of self-censorship by the American

film industry and the potential constitutional problems precipitated by such regulation
see Private Censorship of Movies 22 Stan. L. Rev. 618 (1970). A good deal of the following
discussion will be drawn from that article and another on the same topic, - Ayer, Bate
& Herman, Self-Censorship in the Movie Industry; An Historical Perspective on Law
and Social Change 1970 Wise . L. Rey, 791 (1970),

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1972] FILM CENSORSHIP IN INDIA 549

the state level between 1911 and 1921 prompted the indus
organization, the Motion Picture Poducers And Distri
Inc. (MPPDA), under the direction of Will Hays in
pressure from public interest groups, primarily orga
efforts of the Roman Catholic Church, to "clean up" t
resulted in 1934 in the creation of the Production Co
an adjunct of the MPPDA and the Association of Motio
Inc. (AMPP), an independent organization set up in
alongside MPPDA, whih was charged with the functio
over objectionable films by granting its impremature
of a code seal, to motion pictures screened and endor
The Production Code proved quite effective in impo
movies an unyielding conformity to the standards set
major film companies. This was largely because motio
the code seal of approval were certain to failure since
important of which were owned by the major studios
AMPP, would not even consider exhibiting them. B
other reasons for the success of the code in dictating film
1930's and 1940's. First, the absence of major comp
forms of entertainment ensured the financial success even
displaying the code seal. Secondly, the oligopolist
industry enabled member companies to enforce effect
lation programme. And thirdly, at that point the cou
ing under the assumption, propounded by the Suprem
Film Corp. v. Industrial Comrrfn 257 that motion pict
pure and simple," and hence not entitled to First Amendm
legitimate form of expression.258 Thus, both in a legal an
a variety of factors were at work in American society wh
the viability of the code.259
But the virtually unopposed authority of the old c
undermined by the advent of several factors which struc
structure of the industry. The development of televis
in both the number and quality of foreign films, for exam

255. See N. Runnings^ supra note 2 at 151-52; Khosla Report

256. See R. Moley, The Hays Office 68-88 (1943); R. Randa
Movies 200 (1968). The PCA operated at four stages in the
(1) the story or novel before it is converted into a screen play was
its reaction and criticism, (2) when written, the screen play was ag
for approval, (3) PCA staff was often consulted during the p
picture, and (4) the completed film was reviewed and, if approved
val was issued. Khosla Report at 34. See also N. Hunnings, su
257. (1915) 236 U.S. 230.
258. Id. at 244. This assumption or doctrine was, of course, later reversed in
Joseph Burst y n , Inc. v. Wilson , supra note 1 73 .
259.. For a more complete discussion of the reasons for the success of the code
during this period see supra note 254 at 619-20 ; Ayęr, Bates & Herman, supra note 254
at 792-94.

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 550 JOURNAL OF THE INDIAN LAW INSŤITUŤE [Vol 14 : 4

unassailable lead of motion pictures in the entertainment field. Secondly,

the post-war moral standards of American society became appreciably less
rigid and began to demand greater maturity and realism in films than the
code was willing to permit.260 In the legal area, several Supreme Court
decisions significantly altered the structure of the film industry and the
constitutional status of motion pictures. The government's anti-trust
victory in United States v. Paramount Pictures, Inc.2*1 dismantled the major
studios' iron-clad grip on the production-distribution-exhibition complex,
thus providing for the subsequent entry of independent producers and
exhibitors who were less willing to adhere to the dictates of the code. As a
result, industry self-control of film content became increasingly more
difficult.262 Beyond this, the court in 1952 began to recognize that motion
pictures were entitled to constitutional protection,263 and, utilizing the
"void-for-vagueness" doctrine, struck down virtually all state interference
with films except for the ever-narrowing standard of obscenity,264 thus
greatly allying the major fear which had prompted self-regulation in the
first place.
2. Towards a system of age classification
Within the last decade, several, decisions of the U.S. Supreme Court
appear to have directed the thinking of many governmental officials, on the
state and municipal level, towards the possibility of utilizing age classi-
fication schemes as a means for regulating motion pictures.265 To this end,

260. See Ayer, Bates & Herman, supra note 254 at 797-803 and sUpra note 254
at 620.
261. (1948) 334 U.S. 131.
262. See N. Hunnings, supra note 2 at 164; Ayer, Bates & Herman, supra note
254 at 803-05. An earlier anti-trust suit specifically aimed at the MPPDA (which by that
time had changed its name to the Motion Picture Association of America (MPAA) was
Hughes Tool Co. v. Motion Picture Ass' n of America , Inc., 66 F. Supp. 1006 (1946). In
that case Howard Hughes, a member of the MPAA, brought an action against the asso-
ciation for an injunction to restrain it from withdrawing the code seal from his film "The
Outlaw." The seal had been granted to the film on the condition that all advertising
matter used in publicizing the movie be approved by the Advertising Code Administration,
another department of the MPAA- a condition Hughes violated by using unapproved
material. The court, however, rejected the suit on the grounds that there had been no
evidence of a refusal on the part of exhibitors to show the film without the seal, and that
the distributors of the picture United Artists, were not a member of the MPAA and hence
not bound by its agreements. The court also held that the contract under which the seal
was granted was enforceable despite the fact that one of the parties to it might be violating
the Sherman Anti-trust Act. Id. at 1013.
263. Joseph Burstyn , Inc. v. Wilson , supra note 173.
264. See Joseph Burstyn , supra note 173; Gelling v. Texas, supra note 233, rev' d
per curiam , supra note 232; Commercial Pictures Corp. v. Regents, supra note 234, rev' d
per curiam-, Holmby Prod., Inc. v. Vaughn, supra note 234, rev' d per curiam', Superior
Films, Inc. v. Dept. of Educ., supra note 235, rev'd per curiam.
265. Cf. Times Film Corp. v. Chicago , supra note 158, which heidthat prior
restraints on motion pictures are not per se unconstitutional, and Justice Brennan's
dictum in Jacobellis v. Ohio that "laws aimed specifically at preventing distribution of
objectionable material to children" might be constitutionally acceptable, (1964) 378 U.S.
184? 195. See also Tinsberg v. New York , (1968) 390 U.S. 629.

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Ï9l2) FILM CENSORSHIP IN îNDÏA 55i

the city council of Dallas, Texas, enacted in 1965 the first movie cl
ordinance designed essentially for the protection of children,266 w
state-wide governments awaited a judicial test of the sch
Supreme Court's subsequent decision in Interstate Circuit , Ine . v.
suggesting that narrowly-drawn age classification schemes w
stitutionally valid, further enhanced the optimism of state officia
These events led MPAA officials269 to conclude that indus
regulation would have to proceed along the lines of an age cla
system in order to forestall a new wave of censorial legislation
extended deliberations among industry leaders, MPAA formu
classification scheme predicated upon a theory of patron
sovereignty in which film viwers (or parents) will not patron
able films (or permit their children to do so) because they wil

266. The Dallas ordinance established a Motion Pictures Classification Board

composed of nine appointed members, all of whom had to serve without pay. The
Board was empowered to classify films as "suitable for young persons" or as "not suit-
able for young persons" ("young persons" being defined as children who had not
yet reached their sixteenth birthday). Under the ordinance, an exhibitor was required
to obtain a special license to show films "not suitable for young persons." It required
the exhibitor, before any initial exhibition of the film, to file with the board a proposed
classification of the film together with a summary of its plot and similar information.
If a majority of the board was not satisfied with the proposed classification, the exhibitor
was required to project the film before at least five members at the earliest practicable time.
At the screening, the exhibitor could present testimony or other support for his proposed
classification. Within two days the board was directed to issue its classification order.
If the exhibitor disagreed, he was required to file a notice of nonacceptance within two
days. The board was then required to go to court within a three days' period to seek a
temporary injunction and a hearing was to be set on that application within five days
thereafter. If an injunction did not issue within ten days of the exhibitor's notice of
nonacceptance, the board's classification order was to be suspended. The ordinance
also promulgated a number of substantive standards governing the classification of "not
suitable for young persons" including : (1) "Describing or portraying brutality, criminal
violence or depravity in such a manner as to be . . . likely to incite or encourage crime
or delinquency on the part of young persons," and (2) "Describing or portraying nudity
beyond the customary limits candor in the community, or sexual promiscuity or extra-
marital or abnormal sexual relations in such a manner as to be. . . likely to incite or
encourage delinquency or sexual promiscuity on the part of young persons or appeal to
their prurient interests." The Supreme Court struck dewn the above ordinance in Inter-
state CiruiU Inc. v. Dallas , (1968) 390 U.S. 676 on the ground that its substantive stand-
ards were unconstitutionally vague, but did add that a state, because of its strong and
abiding interest in its youth, could regulate their access to objectionable material by
means of an age classification system providing it was narrowly drawn. Id. at 690.
267. See supra note 255 at 622.
268. (1968) 390 U.S. 676.
269. The MPAA currently consists of the nine largest American producers ana
distributors : Metro-Goldwyn-Mayer, Allied Artists, Columbia Pictures, Avco-Embassy,
20th Century Fox, Paramount Pictures, United Artists, Warner Brothers, and Universal
Pictures. The other major industry associations today include : the National Associa-
tion of Theatre Owners (NATO), the International Film Impoters and Distributors of
America (IFIDA), and the Producers Guild of America, all of whom have joined in
supporting the MPAA's effort. Supra UQtę 254 at 618, n. 1.

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 552 JO URN AL OF THE INDIAN LA W INSTITUTE [Vol. 14 : 4

cient information about the content of motion pictures on which to make

rational decisions.270
The MPAA's revised programme of self-regulation functions by classi-
fying each motion picture submitted into one of the following four cate-
gories, depending upon its degree of conformity to a set of substantive
standards established by the organization:271

G - suggested for general audiences;

M - suggested for mature audiences;272
R - restricted; persons under sixteen years of age not admitted unless
accompanied by parent or adult guardian;
X - persons under sixteen not admitted273

The extent of MPAA's classification scheme is such that rates virtually all
motion pictures exhibited in the United States. All films produced or
distributed by the MPAA members must be submitted to the Code and
Rating Administration (CRA) for approval and classification. Non-members
are invited to do the same or merely submit their films for rating only, which
precludes the possibility of receiving the MPAA seal of approval.274 Motion
pictures which are not submitted to the CRA may voluntarily be assigned an

270. Id. at 622; Ayer, Bates & Herman, supra note 254 at 821-24.
271 . The eleven code standards to be taken into consideration in classifying motion
pictures are :
(1) The basic dignity and value of human life shall be respected and upheld. Res-
traint shall be exercised in portraying the taking of life;
(2) Evil, sin, crime, and wrong-doing shall not be justified;
(3) Special restraint shall be exercised in portraying criminal or anti-social activities
in which minors participate or are involved;
(4) Detailed and protracted acts of brutality, cruelty, physical violence, torture and
abuse shall not be presented;
(5) Indecent or undue exposure of the human body shall not be presented;
(6) Illicit sex relations shall not be justified. Intimate sex scenes violating common
Standards of decency shall not be portrayed;
(7) Restraint and care shall be exercised in presentations dealing with sex aberra-
tions;
(8) Obscene speech, gestures or movements shall not be presented. Undue pro-
fanity shall not be permitted;
(9) Religion shall not be demeaned;
(10) Words or symbols contemptuous of racial, religious or national groups shall
not be used so as to incite bigotry or hatred;
(11) Excessive cruelty to animals shall not be portrayed and animals shall not te
treated inhumanely.
Motion Picture Ass'n of America, The Motion Picture Code and Rating Programme-
A System of Self-Regulation , 1968, at 5.
272. It should be noted that the "M" classification has been replaced by a new
"6P" rating because the "M" designation had proved confusing to the public. Daily
Variety , Jan. 28, 1970, at p. 1.
273.. Supra note 254 at 622.
274. Id. at 623. Most non-member producers and distributors are members of
the IFIDA, however, which is officially cooperating with the MPAA classification pro"
gramme, Id . at n. 31.

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 J97Ź] fi LM CENSORSHIP ÏN ÎNDtA 5 53

"X" rating by their producers and distributors without the ne

CRA action, and any non-rated picture exhibited at a cooperating
receives an automatic "X" rating, regardless of its actual conte
The actual process of the MPAA operates essentially as
Initially, a script of the film is submitted to the CRA before act
tion commences in order that it can issue a preliminary rating,
suggestions for alterations that would, if necessary, improve the fi
fication. A final decision on the rating is reserved until the co
film is screened and reviewed, at which time the CRA enumerat
tions, if any, to the producer or distributor so that he will kno
what alterations are required to receive a more favourable ratin
rated G, G(M), or R may also be awarded the MPAA seal of app
X-rated motion pictures are ineligible. The final rating must ap
prints of the film distributed in the United States and in all related
ing.278 If the film's producer or distributor is dissatisfied by t
rating, he may appeal against the CRA decision to the Code
Appeals Board.279 A two-thirds vote of the Appeals Board
to uphold an X rating, whereas a simple majority vote will aff
decisions on other ratings.280
The success of the MPAA's rating scheme can be analyze
levels: industry utilization and audience awareness. A recen
study indicated large scale utilization of the ratings by motion
industry : 89 per cent of all American exhibitors adhere to the MPA
and 47 per cent do not exhibit X rated pictures. But of the 53 per c
exhibit X films, 70 per cent stated that they strictly enforce the ag
tions. The survey further pointed out that while all major prod
distribution companies participate in the programme, the distr
affiliated with the MPAA have not employed the services of th
Rating Administration as often as was expected. In terms
awareness, the survey indicated that although 58 per cent of th
aware of the MPAA scheme, only about one-quarter use the ratin
for their own choice of motion pictures.281

275. Theatres cooperating with the MPAA scheme constitute approx

89% of all theatres. Variety , Oct. 9, 1968, at p. 3.
276. Supra note 254 at 623.
277. Variety , July 30, 1969, at p. 26.
278. The issuance of the rating is expressly conditioned upon the agreement by
the producer or distributor that all advertising for the film will be submitted to and app-
roved by the Code Director for Advertising. Supra note 254 at 623.
279. The appeals board consists of the MPAA president and 12 members designed
by him from the Board of Directors of the Association or executive officials of its member
companies, 8 exhibitors from the NATO Board of Directors, 2 distributors from the
IFIDA, and 2 producers from the Producers' Guild of America. Id. at 624, n. 35.
280. Id. at 624.
281. Opinion Research Corp., Excerpts From an Appraisal of the Movie Industry's
Voluntary Rating System , Oct., 1969. A study involving personal interviews with a
nation-wide sample of 2,000 adults (age 18 and over) and 622 teenagers (age 12-17) resulted
in the following findings : (1) 58 per cent of the public was aware of the MPAA scheme:

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¿54 JOURNAL OP THE INDIAN LAW INSTITUTE [Vol. 14:4

While it is clear that the MPAA has not been an overwhelming success
and that spectre of governmental censorship of motion pictures remains
ever-present, the American experience does shed some light on the possi-
bilities of voluntary self-regulation and the use of age classification schemes.
The latter may be an important consideration in India as the next section
indicates.

B. The recommendations of the 1968 Film Enquiry Committee

The Khosla Committee, following its extensive study of the matter, made
several suggestions for improving the operation of film censorship in
India. In so doing, it sought measures which would give greater impetus to
realistic and artistic expression in films, while simultaneously excluding
material which would be objectionable for children and controvert tradij
tional moral values. In this section consideration will be given to only two,
albeit majoi' recommendations of the Committee : (1) its suggestion that
the whole panoply of substantive rules and directives of the current Film Code
be discarded in favour of a simpler test for adjudging permissible expression
in motion pictures, and (2) its call for an age classification system which
would protect the interests and morals of children in Indian society from the
baneful effects of objectionable films.
After extensively analysing the substantive rules of the present
Film Code, the committee indicated the code on the grounds that a great
many of the rules, if challenged in court of law, would probably be found to
violate the reasonable restriction provision of article 1 9(2) ; and, in addition
by virtue of their very detail, would make for an inflexible and moribund
system.282 To rectify this state of affairs the committee made the following
recommendation :

[TJhe General Principles, and more particularly the Application

of General Principles, must be done away with. Their place will
be taken by a Censorship Code framed by the Board of Censors.
This Code will

visions of the reasonable restriction clause of Article 19. T

application and interpretation of the Code will rest with t
Censors themselves, in their discretion, consistently with the g
rally accepted norms of morality and conduct.283
To suggest, however, that the Film Code be discarded in favor of t
able restriction clause seems merely to beg the question. Cons

(2) awareness increased with frequency of movie attendance and education

with age; (3) 32 per cent of the people sampled favoured government cens
while 53 per cent supported the motion picture industry's self-regulation, a
favoured broad freedom of expression; and (4) accurate knowledge of t
the ratings was significantly lower than awareness of the ratings' existen
19 per cent understood the meaning of X, only 8 per cent could explain t
tion.
282. See Khosla Report at 55.
283. Id . at 56.

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 1972] FILM CENSORSHIP IN INDIA 555

provisions are painted with a broad stroke and are designed me

jurisprudential norms and bounds from which all other la
validity; they are not the stuff with which film codes and all
made. Article 19(2) is spelled out in such broad non-defini
it would give the censors virtually unlimited license to expurge
scenes from motion pictures merely on the basis of their s
While it is doubtless true that to operate merely under
restriction clause would permit censorship authorities to f
the vicissitudes of modern conduct and morality, there is n
they would not continue to apply the present rules in a d
least initially there is every reason to believe that this wou
only practical course available to censors long accustomed t
a detailed set of directives. But the salient error to be noted in the commi-
ttee's reasoning is that it failed to realize that the reasonable restriction
clause is merely the starting point for determining what is and is not per-
missible expression in films - it can never serve, because of its open-ended
nature, as the panacea or end point in that analysis. No doubt a simpler,
more rational test is needed for adjudging the content of films in India, but
a better appraoach might lie in the development of a more sophisticated,
more clearly defined notion of obscenity.
Apart from those films which clearly transgress the reasonable restric-
tion clause and accepted standards of decency and morality (however deter-
mined), the Khosla Committee further urged a modification of the present
age classification system for other motion pictures. To this end, the
Committee proposed the following three-tier classification system :

(/) "U" - fit for universal exhibition including children of all ages,
whether accompanied or unaccompanied by adults.
(«) "G"- fit for universal exhibition but fit for children under the
age of 16 only if they are accompanied by adults.
(iii) "A" - fit for adult audiences only. Children under the age of 16
will not be permitted to see these films even if they are accom-
panied by adults.
Children between the ages of 16 and 18, if accompanied by their
parents and guardians will, however, be permitted.284

Under this scheme, the Central Board of Film Censror will review each film,
and specify the class and type of certificate which should be granted.286
The Committee claims that a number of benefits will accrue from this
quasi-facilitative system.286 In the first place, it is argued, the system will

284. Id. at 59.

285. Ibid.
286. A facili tative system, in contrast to a proscriptive scheme, merely gives
people information on films from which they voluntarily choose to see a particular motion
picture or not, i.e., it "facilitates" their choice. By a "proscriptive" system is meant one
which completely proscribes certain films from exhibition for all people. The system
recommended by the Committee approximates neither of these polar positions completely,

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556 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14 : 4
protect the interests of children with respect to the viewing of objectionable
films, while at the same time ensuring that adults can voluntarily decide to
see any and all motion pictures which do not violate the penal laws
constitutional prohibitions.287 Moreover, the system purportedly will not
impose any restriction or restraint on the right to freedom of expression,
but rather will merely act as a source of information for parents, who will,
themselves, decide whether to permit their children to attend certain films.288
Clearly, there is some merit and weight behind the committee's argu-
ments. In the first place, the state does derive strong authority from the
Constitution for declaring that certain classes of films shall not be considered
suitable for exhibition to children below a specified age. Article 15 of
the Constitution, for example, prohibits the state from making discrimina-
tions on the basis of race, religion, caste, sex, or place of birth, but adds
that "nothing in this article shall prevent the State from making any special
provision for women and children,"289 The directive principles of state
policy, those nonjusticiable constitutional guideposts for governmental
action, also proclaim "that childhood and youth [must be] protected againt
exploitation and against moral and material abandonment,"290 While the
suggested classification system may not be as informative as that of the
MPAA in the United States, it is also true that it will facilitate parents in
choosing films they wish their children to view or not to view.
But the system, however, does suffer from some salient drawbacks.
First, the commission suggests no standards for guiding the Censor Board in
rating motion pictures, save whether a "film will have a deleterious effect
on young minds."291 The committee even further suggests that the board's
discretion in applying this standard should not be subject to judicial review.292
Such a scheme does not auger well for the maintenance of realism and artistic
expression in films. The suggested standard is so vague, so lacking in
social scientific theory,293 and so open to subjective value judgments that it
provides the film censor with unlimited license to rate a film according to their
personal whims. Such vagueness is no less obectionable because the regu-
lation of expression is one of classification rather than direct restriction, nor
should the protection of children justify such open-ended standards.294
but rather combines features of both. For example, it provides parents with informa-
tion on the basis of which they can decide upon the films their children will see; but, on
the other hand, proscribes certain films from being viewed at all by young persons under
the age of 16.
287. See Khosla Report at 56.
288. To this end, the Commission argues that the "mere giving of such information
cannot be deemed curtailment of anyone's right." Id. at 8.
289. Constitution of India , art. 15(3).
290. Id . art. 39 (/).
291. Khosla Report at 57.
292. Ibid.
293. See "For Adults Only"; The Constitutionality of Governmental Film
Censorship by Age Classification 69 Yale L.J. 141, 147-48 (1959).
294. See Interstate Circuit , Inc. v. Dallas , (1968) 390 U.S. 676, 688-89. But c/.
Comment, Exclusion of Children From Violent Movies 67 Colum. L. Rev. 1149, 1159
(1P67).

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1972] film Censorship in îndîa 55?

Secondly, while it is true that the scheme technically d

of anything (like the present Film Code), certain co
age classification system operate to achieve a de fac
formity to particular standards.295 It seems quite clear
producers will undoubtedly alter their films to ach
rating and will hesitate to explore the boundaries of
for fear of receiving an adult rating. To receive su
result in the kind of financial loss which will dissuade film makers from
experimenting in new film motifs. Thus, as the Khosla Committee, itself
observed :

Witnesses were almost unanimous in saying that a film certified

(as) fit for exhibition to adults only will fail at the box-office,
because in this country film goers like to take their children with
them, and if the film is certified fit for adults only, persons under
the age of 18 (16 under the proposed scheme) cannot be per-
mitted to see it and the film will not pay its way . . . and if one or
two films of this type are denied the "fit for universal exhibition"
certificate, producers will cease to make any more films of this
kind.296

As this points out the "indirect censorship" of an age classification system

may be every bit as restrictive and undistinguishable in effect as forms of
direct film censorship.297 Moreover, the 'A' rating operates as a form of
direct censorship for young persons under the age of sixteen, thus effectively
depriving them of whatever constitutional right they may have to entertain
or view permissible expression in motion pictures.298
In sum, then, it appears that despite its pretence of being a mere
"informational" system, pursuing no restrictions on freedom of speech and
expression in films, the age classification system suggested by the Khosla
Committee may be as coercive and intimaidating as any form of direct
censorship.299 Certainly, its most obvious flaw is a lack of reasonably
precise substantive standards to govern the rating of films brought before
the Censor Board.

295. In the United States, for example, there is a good deal of evidence that produ-
cers do alter their films because of the pressure of meeting certain standards to achieve a
favourable rating. See Private Censorship of Movies 22 Stan . L. Rev. 618, 634, n 84 (1970)
296. Khosla Report at 139.
297. See Klein, Film censorship: The British and American Experience 12 Vili . L.
Rev . 419, 455 (1967). Thus, as Chief Justice Warren, dissenting in Times Film Corp. v.
Chicago , (1961) 365 U.S.43, 75 observed : "[T]he fear of the censor by the composer of
ideas acts as a substantial deterrent to the creation of new thoughts."
298. For the situation in the United States see Comment, supra note 294 at 1 158-60.
299. The U.S. Supreme Court in Bantam Books Inc. v. Sulllivan, (1963), 372 U.S. 58
expressly recognized that "informal censorship" may be unconstitutional where the
coercive and intimidating elements ©f the system amount in effect to a censorship scheme
devoid of constitutionally required safeguards.

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558 JOURNAL OP THE INDIAN LAW INSTITUTE [Vol. 14 :4

IV. Conclusion - Film censorship in a developing society : Government

piteraalism or realistic preservation of traditional moral values ?
Film censorship, or any form of censorship for that matter, raises
difficult questions of democracy, modernization, privacy, and the extent of
legitimate artistic expression in society. T o what extent, for example, should
government be áble to dictate the artistic (or non-artistic) tastes of private
citizens? Should the legislation of morality and the preservation of tra-
ditional values be within the province of government? To what extent is
greater freedom of expression tied-in with modernization? Assuming that a
particular mode of censorship is clearly ultra vires the Constitution, should it
nevertheless be maintained because a majority of the people favour suoh an
approach?
Seeking answers to these questions becomes particularly problematic
in a country such as India, where the forces of modernization continually
seem to come in conflict with the polar forces of traditional values. Systems
of censorship, usually the bastions of traditional morality, are caught-up
in the center of this ongoing social evolution. What will be the result?
On the one hand, the spectre of some Orwellian system of governmental
thought control appears more possible in a society such as India where,
seem to come in conflict with the polar forces of traditional values. System
notwithstanding an ostensible commitment to democratic values and a
seemingly relentless wish to achieve modernity, or at least the trappings of it,
the job of maintaining established moral values and behaviour has long been
held to be within the province of governmental authority.300 India's social
welfare programmes, for example, from the very First Five-Year Plan, have
continually reiterated the need for raising the standard of character and
conduct in sexual relations and of exploring and removing the causes of
moral danger for the young.301 Yet very few people seem to object to the
government's attempt to intervene in their private behaviour or determine
what is fit for them to see or read.
While this may surprise some western minds, part of the answer may
reside in the fact that the notion of preserving the traditional norms of
moral behaviour is still a strong and widely ascribed ideal in India. To some
Indians the best means for achieving this end would be to isolate Indian
society from the perceived "corrupting" influences of Western mores,
whether their source is to be found in books, films or other mediums of
expression. The Khosla Committee, for example, in an exception to a

300. This is not to say, however, that the legislation of morality is uniquely cominea
to the governments of traditionl societies. In such a modern and highly developed
counry like the United States there has been an extented history of government intervention
into the private morals and behaviour of its citizens. See generally Henkin, Morals and the
Constitution : The Sin of Obscenity 63 Colum. L. Rev 391 (1963). The point is, rather
that in a traditional society individuals seem to be less inclined to challenge assumptions of
authority in this area by government because of a prevailing ethos of conformity to esta-
blished values and norms which is less prevalent in modern societies.
301. J. Mullik, Law of Obscenity in India 5 (1966). The First Five- Year rían,
for example, concluded :

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1972] FILM CENSORSHIP IN INDIA 559

usually liberal and moderate report, even went so far as t

By a strange process of inversion, we now wish t

ourselves from the baneful and immoral influences of the west-
ern films. We are not concerned about glamourising the dignity
of the white people.. ..[W]e feel that as far as morals. ..are
concerned, there is nothing in the West which deserves to be
emulated. Indeed, we apprehend the pollution of our own
culture by the pervasive poison of the diseased and declining
morals of the white people. We are greatly agitated because our
film producers are beginning to copy the worst in western films,
e.g., scenes of excessive love-making, indecently dressed women,
scenes of cruelty and torture... all of which have become
favourite themes of the so-called progressive and creative
artists ... so, whereas our white rulers wanted to remain
aloof, superior and beyond our ken, we want to preserve our-
selves by remaining pure and apart and by denying ourselves
the knowledge of what the whites think and do.302

Hence, there appears to be a strong feeling among Indians that the West
has gone too far too fast in its films and literature, and that Indian society
can obviate the mistakes of the West by effectively screening out such
western influence. But there is an unmistakeably futile twist in lhe view.
Particularly in an age such as ours when the revolution in communications
media has shrunken the world in terms of the transmission of people, ideas
and bahaviour, it seems rather silly to pretend that a society - especially
one such as India which is continually reaching outward for its concepts of
modernity - can isolate itself from the realm of international ideas and
behaviour. Even the Khosla Committee, in what appears to be an obvious
contradiction to its above view, concedes that western influence and its
resultant liberalizing effect on traditional Indian values is inevitable.302
Thus, while it may be a laudable idea to attempt to isolate one's society from
forces of change that threaten the collusiveness of a traditionally-ordered
culture ; it just will not work unless, of course, a society is willing to entrust
its leaders with wholly dictatorial powers as in the case of China. Hope-
fully, however, this will not be a viable alternative for India.
Nevertheless, it is true that laws, and even constitutional maxims, must
ultimately derive their force and authority from the people themselves. This

The movement now afoot on a small scale for upholding the highest family
traditions . . . should be supported and encouraged. There is need for constant
vigilance over private agencies which have taken up the work of rehabilitating
morally handicapped persons.
Government of India, First Five-Year Plan 234 (1952).
302. Khosla Report 5 at 10-1 1. See generally Banerjee, This Business of Pornography
The Illustrated Weekly of India, Hov. 14, 1971, at 30-3; Hafizzi. Are Western Films
Corrupting our Youth? The Illustrated Weekly of India , Mar. 19, 1973, at 40-5.

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56Ô JÔ VkNAL OP TtíE ÍÑÚtAÑ LAW INSTITUTE [Vol. 14 : 4

may present a difficult dilemma when the dictates of the Constitutin ostensi-
bly point in a different direction than the moral inclinations of the people.
Take, for example, the case of kissing and nudity in films in India. It is now
well established in Indian law that the portrayal of kissing and nudity, if
"tastefully" done will not violate article 19 of the Constitution.303 But the
film censors continue to prohibit such scenes in Indian motion pictures, and
apparently are supported in this task by the contemporary values of Indian
people. Thus, in a study conducted for the Khosla Committee, it was
found that over a majority of those polled felt that kissing scenes should be
deleted from Indian films even if they were a natural part of the plot.304
Kissing is not acceptable public behaviour in Indian society,305 and, like
other Asian societies, the culture tends to emphasize a certain sense of
shame with regard to sex, nudity, and related areas.306 In this respect,
then, it seems rather inappropriate and ethnocentric to urge that Indian
film censorship should more closely approximate the progressive and
"enlightened" approach of western countries.307 Clearly, the Indian
approach to film censorship cannot wholly be judged on the basis of western
standards.
But, on the other hand, it is an inescapable fact that times and values
are changing in India ; perhaps more slowly than in other societies, but chang-
ing nevertheless. Moreover, India has committed herself to the task of becom-
ing a modern society, and to accomplish this end will undoubtedly require,
in part, a commitment to freedom of speech and expression which will
generate new ideas and patterns of bahaviour conducive to social progress.
Take, for example, the case of venerai disease. The present Film Code

303. See Ranjit Udeshi v. State of Maharashtra, supra note 142 ; K.A. Abbas v.
Union of India , supra note 6.
304. Khosla Report at 85. Some doubt may be cast on the representativeness, and
hence the validity of the survey because of the overrepresentation of urban, educated people
in the study and because of the haphazard response to the survey. Id. at 83-4. But, in fact,
the bias of the results would seem to be in favour of more liberality in the views expressed.
Indeed, if the proper representation of the rural, conservative elements had been ach ieved
the results might have shown an even greater unanimity of opinion that kissing scenes
should be expurged from Indian films.
305. See Ray, To Kiss or not to Kiss The Hindustan Times , Feb. 20, 1972, at p. 4;
Padaki, Rally Round the Kiss The Illustrated Weekly of India , April 11, 1971, at 55, 5 7.
Indian Society is not unique in its view on kissing. Many Asian cultures regard kissing in
public between men and women as the utmost obscenity, even approaching perversity.
See La Barre, Obscenity : An Anthropological Appraisal 20, Law & Contemp. Prob , 533.
542 (1955); Crawley, Studies of Savages and Sex 113-36 (J. Besterman ed. 1929).
306. J. Mallik, supra note 301 at 61 (1966).
307. See generally id. at 38-9;
See also Chaudhari, The Test of Obscenity in Ranjit Udeshi Case 1 Crim. L. J. 73 at
76 (1969):
In an affluent society, highly educated and industrialized where science and
technology has become part and parcel of man's daily life, the attitude of the
people of looking at sex relations and consequently at problems of obscenity
naturally differs from countries in which these things are conspicuous by their
absence.

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1Ô72] FILM CENSORSHIP IN INDIA 561

directs that details of such topics may be objectionable an

tion if they are portrayed in a context amounting to indecen
illegality or incitement to crime.308 In addition to this b
Indian law still rigorously controls the advertisement of
although it is no longer an offence to advocate their use
result of this Victorian approach to anything related to se
now estimated that well in excess of twenty million persons a
venereal disease in India.310 The salient point is that the
modern society to which India aspires cannot be met in
restrictive and isolated culture premised on traditional unc
thought and behaviour.
The choice for India with respect to the censorship of film
Khosla Committee has suggested, between a swing towad
hedonism" or remaining tied to "the shackles of Victoria
On the contrary, if the courts and concerned legislators begin
keeping sex under cover only leads to an over-emphasis of
that greater latitude for speech and expression in films an
will create a more favourable climate for rational moder
seems likely that we will witness in India a particularly un
legal concepts relating to film censorship - one which nei
sakes the traditional values nor fetters the incremental advances in realistic
artistic expression which is the concomitant of good motion pictures. The
"reasonable restriction" clause of the Constitution requires nothing else.

308. Application of General Principles, II (///).

309. Act of April 30, 1954, [The] Drugs and Magic Remedies (Objectionable
Advertisements) Act, s. 3(d).
310. See Vasudev, Venerai Diseases, The Illustrated Weekly of India, Nov. 28, 1971,
at 10. The lack of information about the causes and controls of venereal disease has been a
prominent factor which has led to a virtual epidemic of venereal disease even in modern,
advanced countries. See Newsweek (International Edition), Jan. 24, 1972. at 44.
311. Khosla Report at 25.

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