Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
Irwin toy ltd. v. Quebec
Closed Expands Expression
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The High Court of Bombay held that the Film Certification Appellate Tribunal (FCAT) was in breach of Article 9(1)(a) of the Indian Constitution guaranteeing freedom of speech and expression when it ordered a documentary-maker to make cuts and recommended an addition to his film ‘War and Peace’. The film addressed the journey of peace activism in the face of global militarism and had won numerous international awards before the FCAT required the cuts for the film’s general release in cinemas, citing concerns over public decency. The Court reasoned that the only grounds on which freedom of speech and expression could be restricted were those found in Article 19(2) of the Constitution namely the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. However, it said that the recommendations of the FCAT did not meet any of these requirements as the impugned scenes related to personal opinions and criticism of government policies which may not be restricted in a democratic society. The Court affirmed that creative pursuits require sufficient space to “interpret life and society” and that it should be up to the filmmaker to determine what to include in his film. Accordingly, the FCAT was ordered to issue a ‘U’ Certificate for public exhibition of the documentary with no deletion or addition.
Mr Anand is a well-known documentary director in India and has directed international as well as award-winning national documentaries about socially relevant issues for three decades. ‘War and Peace’ dealt with the journey of peace activism in the face of global militarism and war and had been filmed over a period of three years in different countries including India, Pakistan, Japan and the United States. The film was screened at an international film festival in February 2002 and awarded the Best Film/Video Award as well as the International Jury Award. For public exhibition of the film, it was submitted for certification as required by the law to the Central Board of Film Certification. The board recommended six cuts for issuing the ‘Universal’ certificate to the film. On Mr. Anand’s objection a Revising Committee was appointed but instead of reducing the cuts it recommended fifteen more deletions. Mr. Anand then appealed to the FCAT which viewed the film and issued a ‘Universal’ certificate subject to two cuts in the film and one addition. The first deletion concerned demonstrators shouting slogans against the nuclear bombs being tested by India and Pakistan, chanting Hindu Bomb Hi Hi (Hindu Bomb Shame Shame) and Muslim Bomb Hi Hi (Muslim Bomb Shame Shame). The second deletion is a statement by a Dalit leader decrying the fact that the atomic device set off by India exploded on Buddha’s birthday, Buddha being a lover of peace. The addition related to videotapes of a sting operation exposing corruption in the government and the armed forces, popularly known as the ‘Tehelka’ tapes. The FCAT wanted it to be stated that the tapes were under scrutiny of a Judicial Commission. Aggrieved by the FCAT’s decision on all counts, Mr. Anand filed a petition in the High Court challenging the Order.
The question for the Court was whether the Order passed by the FCAT violates freedom of speech and expression guaranteed by Article 19(1)(a) of the Indian Constitution. Justice Gokhale delivered the judgment.
Mr Sebastian appearing on behalf of Mr Anand pleaded before the court that the FCAT decision was uncalled for and affected the freedom of expression and speech of the Petitioner. Regarding the first cut, he argued that it was the demonstrators in the film expressing their views in referring to the attacks as a Hindu bomb and Muslim bomb. The Petitioner wasn’t expressing his view but rather wanted to pass on the message as to how the general public perceived these attacks. The FCAT argued that India was a secular country and by calling it a Muslim bomb, it was being projected as if it belonged to all the Muslim countries in the world. However, Mr Sebastian submitted that this was an erroneous interpretation and no reasonable viewer would interpret it in that way. Regarding the second cut, the FACT objected to the sentence ‘It is your culture’ when the Dalit leader refers to the Hindu Gods that carry weapons. But the Petitioner argued that the comment was a reaction of a Dalit leader who was a follower of the peace-loving Buddha and entitled to this comment. Lastly, Mr Sebastian argued that the recommended addition was a way of imposing the government’s viewpoint in the documentary and that the Commission examining the tapes had already passed an interim order upholding the validity of the tapes. Mr Salvi appearing on behalf of the Respondents, justified the cuts on the basis that they were in the interests of public order and therefore permissible as a restriction on free speech pursuant to Section 5-B(1) of the Cinematograph Act 1952 which allows for the same restrictions on freedom of speech as Article 19(2) of the Constitution. So far as the addition was concerned, Mr. Salvi submitted that this was necessary on the grounds of public decency as stated in Section 5-A(1) of the Act.
The Court referred to Article 9(1) (a) of the Constitution which grants all citizens the right to freedom of speech and expression subject only to Article 19(2) which imposes reasonable restrictions if it is “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”. It also observed that Section 5-B (1) of the Cinematograph Act was in similar terms and then went on to refer to precedents concerning the right of film-makers. In K.A. Abbas v. Union of India, MANU/SC/0053/1970: 2SCR446, a case that concerned scenes from a red-light district in Bombay, the court held that “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[Para 49]”. In S. Rangarajan v. P. Jagjivan Ram MANU/SC/0475/1989: 2SCR204 a producer appealed the revocation of a ‘U’ certificate by the Madras High Court in relation to a film centered around caste conflict. Allowing the appeal the court stated that “In democracy it is not necessary that everyone should sing the same song” and it stressed that “open criticism of government policies and operations is not a ground for restricting expression” [Para 26].
Summing up the Court said there were many ways of looking at an issue and “it is only in a democratic government that the citizens have the right to express themselves fully and fearlessly….freedom of expression and speech is important not merely for the consequences that ensue in the absence thereof but since the negation of it runs as an antithesis to basic human values, instincts and creativity.”
In short, the Court held that it was Mr. Anand’s right to decide what/what not to include in his film and that any deletion/addition would violate that right. It therefore allowed Mr. Anand’s petition, set aside the the FCAT’s impugned Order and directed it to issue a ‘U’ Certificate for public exhibition of the documentary with no deletion or addition.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by affirming previous case law upholding the rights of filmmakers to express views that may be at odds with views shared by the majority. “Respect for and the tolerance of a diversity of viewpoints is what ultimately sustains a democratic society and Government.” Anand C. Dighe v State of Maharashtra 2002 (1) BCR 57
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Sections 5-A(1), 5-B, 5-D
Case significance refers to how influential the case is and how its significance changes over time.
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