Censorship must balance protection and freedom

By Rahul Chaudhry, Lall Lahiri & Salhotra
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The right to free speech is a cornerstone of democracy. In the absence of the right to communicate and express oneself freely, the very idea of democracy would be meaningless.

The Constitution of India recognizes the importance of free speech and expression, and enshrines these as fundamental rights of all citizens. A natural consequence of this right is that what a citizen conveys may not seem politically, socially or morally appropriate to all other citizens in society, and so the question of censorship arises.

Rahul Chaudhry Partner Lall Lahiri & SalhotraRahul Chaudhry Partner Lall Lahiri & Salhotra
Rahul Chaudhry
Partner
Lall Lahiri & Salhotra

Censorship is most commonly understood to mean control or restriction of the expression of ideas in published media, including art, literature and film. All freedoms granted under the constitution, including freedom of speech, are subject to reasonable restrictions. This concept is easy to explain, but its implementation is typically problematic and controversial.

Censorship in India is carried out under the Indian Penal Code, the Cinematograph Act, the Dramatic Performances Act, the Customs Act, the Post Office Act, the Indecent Representation of Women (Prevention) Act, the Young Persons (Harmful Publications) Act, the Information Technology Act and the Cable Television Networks (Regulation) Act.

All these provisions of law allow for censorship of material that is perverse, obscene, indecent or scandalous. According to the Indian Penal Code, a representation is obscene when “the effect… is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to relevant circumstances, to read, see or hear the matter.”

This prescription leaves open the persistent question of how it should be applied: where is the boundary between the moral and the obscene? Since 1868 courts have recognized the standard of “a common man” as the appropriate measure; known as the Hicklin test, it asks courts to decide “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall”.

However this test is widely considered archaic and has been largely abandoned as as a sole criterion; courts now include the literary merit and preponderating social purpose of the publication as factors that must also be weighed in the equation.

In KA Abbas v Union of India, 1970, the Supreme Court said, “The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal form and the line is to be drawn where the average man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value.”

Any standard applied for censorship needs to be flexible, and to keep in mind the intended audience and the context of the material. In the famous case of the film Bandit Queen, certain depictions were challenged as being obscene. The Supreme Court did not agree, holding that the defence of “aversion” – the depiction of something scandalous or obscene in a manner and with the intention of creating aversion against a social evil or evoking the grim realities of life – was valid.

Censorship is also applied in cases of contempt of court, an area of law devised to protect public respect for and confidence in the judiciary as essential to the rule of law. The protection of factual reporting, and of honest criticism that does not “lower the dignity of the judiciary”, are among the principles which guide the courts in determining contempt.

However, it has been observed that courts have sometimes been overly sensitive to criticism, and that holding commentators in contempt is generally counterproductive, because it leads to greater media coverage of the matter. Cases such as those of Arundhati Roy and Rajendra Sail have highlighted this time and again.

Extra-judicial censorship, or “moral policing”, has also increased and brought problems of its own. Self-styled protectors of Indian culture and heritage would do well to remember that when an item has been legally cleared for publication, attempting to suppress it is both unconstitutional and culturally regressive. The expression of ideas, some of which may be scandalous to a section of society, is essential for the evolution and survival of Indian culture.

Is the law of contempt, and indeed the concept of censorship, necessary at all? Some argue that impressionable minds need protection from potentially damaging influences, and that scandalous material can desensitize society to wrongdoing; yet freedom of speech and expression remains a compelling social value, essential to cultural growth and development.

The law of censorship needs to find a balance between the two extremes, and to protect the basic freedom of citizens to exercise reasonable expression, in tune with the changing mores and norms of society.

Rahul Chaudhry was called to the bar in September 2002. He joined Lall Lahiri & Salhotra in January 2004 and became a partner just four years later. Along with the firm’s founding partners, Anuradha Salhotra and Amar Raj Lall, Chaudhry is regarded as one of the most prominent faces of IP management in India.

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