CERTIFIED; YET BANNED?

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I am pleased to bring to you our next guest post by Ritisha Mukherjee. Ritisha is a young lawyer having recently graduated from Nirma University with specialization in Intellectual Property Rights. She takes keen interest in media and entertainment laws and is currently working at Excel Entertainment Pvt. Ltd.

Close on the heels of the controversies regarding the political drama ‘The Accidental Prime Minister’, the Indian Film Industry saw another movie subdued under the burden of political hullabaloo. The West Bengal Film Industry, often fondly referred to as the ‘Tollywood Industry’, released its much-awaited film ‘Bhobishyoter Bhoot’ (‘Ghosts of the Future’) on the 15th of February, only to have it taken off the theatres within a day of the theatrical release.  While neither the director of the film, Anik Dutta nor the producer Indibily Creative Pvt. Ltd.  was officially given any explanation for such banning, pre-booked tickets at theatres all across the state were cancelled following ‘instructions from higher authorities’. Although speculations suggest that such banning may be attributed to political reasons owing to the film being a socio-political satire having seemingly offended the rather sensitive political personas of the state, the real reason for such banning remains a mystery still. The hard question to grapple with, is if such banning is legitimate.

The right to freedom of expression not being absolute is associated with some reasonable restrictions imposed on the exercise of such right. Contextually, the concept of censorship in movies kicks in to ensure that the right to freedom of expression can be exercised without violating the limitations laid down by those reasonable restrictions. Owing to such interrelation between censorship and freedom of expression, the history of film-banning in India can be identified with as an extremely familiar affair. ‘Bhobishyoter Bhoot’ adds to the long list of films that have created controversies in the country. While some films like ‘Bandit Queen’ (1996) and ‘Black Friday’ (2007) have been banned by the Central Board of Film Certification (CBFC) for their content being obscene, public screening of others like ‘Aarakshan’ (2011) and ‘Kedarnath’ (2018) have been protested against by state governments for containing politically sensitive content likely to create public disorder. In acknowledgement of both the film-makers’ constitutional right to freedom of expression through their movies and the necessity of maintaining public order, the CBFC passes the censor certificate in favour of or against a movie, taking into due consideration the reasonable restrictions imposed on the exercise of the said right; thereby either certifying the movie for public exhibition, or denying it certification. Deriving strength from the provisions of The Cinematograph Act, 1952, the CBFC, as the supreme authority on certifying films, can therefore deny a film certification if such film is considered capable of hampering the security of the state, causing defamation and/or disruption of public order and morality or is likely to incite the commission of any offence. Consequentially, a certificate passed by the CBFC not only validates a cinematograph film as fit for theatrical release and public exhibition, but it also renders such validation irrefutably conclusive, unless, an appeal is put forth for the revision of such certificate, or an application is filed for the suspension or revocation of the certificate. ‘Bhobishyoter Bhoot’ was subjected to all stages of such scrutiny by the CBFC and subsequently certified as suitable for public exhibition without any major cuts. Nevertheless, disregarding such validation from the expert body, the theatres were expressly restricted by ‘higher authorities’ from exhibiting the film publicly.

Until before the theatres banished the film, pre-bookings indicated a full-house almost in every theatre in Kolkata. It is therefore virtually certain that the film would have soared at the box office if only it had been allowed public screening. Unsurprisingly, the Tollywood fraternity did not wait too long after the ban to burst into remonstrations, crying hoarse in garnering protests against such unfair banning of the film through letters, slogans and public gatherings. Admittedly, such banning is an unprecedented instance and adds a new chapter to the history of film banning in the country. While the film industry has seen films being denied certification by the CBFC, or screening of films being protested against by state governments before CBFC certification, never before has a film been denied public exhibition a day after its release by an anonymous ‘high authority’ in spite of a certificate from the CBFC validating its screening.

Following the controversy regarding the release of the film ‘Padmavati’ later renamed as ‘Padmaavat’ (2018), the judgment of the Supreme Court in Union of India v K. M. Shankarappa resurfaced wherein the court had ruled that state governments do not enjoy the power of sanctioning the public exhibition of films. Back in 2011 during the release of ‘Aarakshan’ in Punjab, Uttar Pradesh and Andhra Pradesh, the Supreme Court had expressly laid down that states cannot ban a film certified by the CBFC even on grounds of apprehending a violation of public order; rather it is the duty of the government to ensure maintenance of law and order. In 2006, when Kunal Kohli’s film ‘Fanaa’ was unofficially banned from being screened in Gujarat, the apex court showed support in encouraging its theatrical screening by ordering police protection to be provided to the handful of theatres in the state that agreed to screen the film. Likewise, oppositions to the screening of the certified film ‘Nanak Shah Fakir’ (2018) by the religious body of Sikhs, Shiromani Gurdwara Prabandhak Committee was criticized by the apex court strongly, and propounded that state governments cannot restrict screening of a CBFC-certified film.

Regardless of the reasonable restrictions imposed on the exercise of the right to freedom of expression, banning of ‘Bhobishyoter Bhoot’ is an absolute farce. The film has been banished from the theatres of Bengal based on the factual assumption that its content is politically sensitive. However, the director has contradicted such allegations saying that the film only addresses the general political scenario instead of specifically attacking any political party. Evidently, with the basis of such banning being faulty, the ban itself loses credibility. Secondly, the CBFC has already subjected the film to scrutiny and decided as the supreme certifying authority that the film contains no such content capable of causing social unrest in the state. Deeply saddening is the response of the state government to the fiasco (or the lack of it). Given that the state government of West Bengal takes serious interest in the growth and development of the Tollywood film industry, the unexplained banning of the film was expected to have been protested against by the state. The same state government which dedicates a substantial portion of the State Budget towards the grand celebration of the annual Kolkata Film Festival has denied having any authority in lifting the ban so imposed, and has shown no interest in investigating and discovering the identity of the mysterious ‘higher authority’ imposing the ban, or the capacity in which such ‘authority’ has banned a certified film.

Not long ago in 2018, a film titled ‘Danga – The Riot’ based on the life of the BJP leader Shyamaprashad Mookerjee was blocked by theatres in Bengal after CBFC certification right on the eve of its release following alleged anonymous threat-calls to the theatres. Blaming the state government for stalling the release of the film, its director questioned why a film based on an eminent bengalee’s life was being denied public screening in Bengal while ‘Padmaavat’ was being welcomed for release all across the state in spite of the controversy in the other states of the country. It was only after director Milan Bhowmik had moved court against such banning, and the Calcutta High Court had passed an order permitting public exhibition of the film that the theatres reinstated it for screening. For an industry that had once hosted directors like Ray, Ghatak, Mrinal Sen and Rituparno Ghosh (to name just a few), this is a phase of regression, to say the least. Following this major retrogression of Bengali cinema, the fate of the West Bengal Film Industry shall stand threatened to suffer commercially and otherwise at the mercy of all such ‘higher authorities’; and while the intellectual property and labour of all artists, authors, music composers, performers and other creative personalities actively involved in the world of cinema continue to be disregarded and disrespected, we can only hope that our courts uphold our right to freedom of expression to prevent farcical banning of movies, today and everyday.

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