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Screen Sex and Censorship: What the law says

Who decides what should or should not be beamed into Indian living rooms, and when it becomes sexual harassment?

Ranjeev C. Dubey | September 26, 2016 | Updated 19:49 IST
Screen Sex and Censorship: What the law says

Ranjeev C. Dubey
Now that we are nearly empty nesters, the maids at home get their fill of TV time. A lot of it is pretty racy stuff, putting me in the impossible position of diving for the Remote every time one of them walks in with the dinner tray. Section 354A of our Penal Code defines sexual harassment to include "showing pornography against the will of a woman". The maids watch Paoli Dam doing her thing on the kitchen table downstairs in the same movie I do to the full approval of the Censor Board, but if I watch it while they are in the room, I face three years in the slammer! Don't you just love the law?

Who decides what should or should not be beamed into Indian living rooms, and when it becomes sexual harassment? When I first started to see movies in the 1970s, a lot of the explicit content you see these days wasn't ok by far. What has changed? Section 5B(1) of the Cinematograph Act 1952 remains unchanged on the statute books for a long time:

"a film shall not be certified if any part of it is against the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or involves defamation or contempt of court or is likely to incite commission of any offence".

This sets up the power of the Central Board of Film Certification to snip bits of film in the interest of 'public decency' before sanctioning them for public viewing. But how is 'decency' to be defined? The Central Government has tried to help CBFC by providing Guidelines as late as Dec 6th, 1991. Vulgarity, obscenity or depravity which 'offends human sensibilities', scenes degrading women, scenes of sexual violence against women including rape, sexual perversion, and so forth were all prohibited.

But how are we to tell what offends human sensibility? My mother is offended by a great many explicit scenes I am not. Who best represents the average in average human sensibility? Inevitably, the courts have been approached from time to time to unravel this cultural mystery. The Supreme Court made an admirable attempt to establish some criterion 45 years back in the case of K.A. Abbas v Union of India [(1970) 2 SCC 780] when it examined the contents of a documentary called 'A Tale of Four Cities'. This lefty work attempted to contrast the lives of the rich and the poor in four Indian metros, and included footage from Bombay's red light district. Was this footage indecent? The Supreme Court didn't think so, setting up the criterion thus:

"Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. … Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the censor's scissors but how the theme is handled by the producer. We may view a documentary on the erotic tableaux from our ancient temples with equanimity or read the Kamasutra, but a documentary from them as a practical sexual guide would be abhorrent."

It was 16 years before this principle experienced its first evolution when the Supreme Court extended this principle to mean not merely the on-screen 'handling' of explicit content but also its relevance to the overall story. In the case of Bobby Art International vs Om Pal Singh Hoon [(1996) 4 SCC 1], Shekhar Kapur's graphic depiction of Phoolan Devi's (1) rape by the dacoit Babu Gujjar and (2) subsequent gang rape and naked parade in Behmai village come up for adjudication before the court. Was frontal nudity always indecent? Once again, the Supreme Court took the liberal view.

"Nakedness does not always arouse the baser incident. … Bandit Queen tells a powerful human story and to that story, the scene of Phoolan Devi's enforced naked parade is central. It helps to explain why Phoolan Devi became what she did: …We find that the judgment under appeal does not take due note of the theme of the film and the fact that it condemns rape and the degradation of and violence upon women."

The Bandit Queen judgment represents a great departure from previous norms. In one giant brushstroke, the goalpost had been moved from tasteful depiction to contextual relevance. This meant that if you decided to make a movie about any brutalised person, graphic depictions of brutality would be entirely appropriate. This is the main reason why movies of the 1990s have depicted progressively more on-screen brutality than their predecessors, a process so relentless and unidirectional that its only logical endpoint is a situation where all limits are removed.
 
This brings us to the political scandal that is 'Udta Punjab', of which CBFC ordered 13 different deletions including verbal profanity, public pissing, scenes of intravenous drug use, the inclusion of a common Punjabi homily in the dialogue, indeed the reference to Punjab itself. In Phantom Films Pvt. Ltd. v. CBFC [Bombay High Court order of June 13th, 2016], the court overruled these cuts, observing:

"The human sensibilities are not offended by vulgarity, obscenity or depravity. Such scenes and dialogues have to be viewed in totality. The story must be read and considered in its entirety. It is not safe to select a few words, sentences, dialogues and scenes and then to arrive at the conclusion reached by the board. If a strata of society habituated to indulge freely in vulgar abuses are shown as indulging in the same without in the slightest manner glorifying them or their language, then, we do not see anything objectionable in the words." (Author's Emphasis)

I gravely suspect Udta Punjab represents a greater watershed in the evolution of Indian thinking about decency in films than most people give it credit for. From a point in time in 1970 when the Censor Board was most concerned about tasteful thematic handling of disquieting subjects, we are now at a point where filmmakers are free to show any subject so long as the protagonists are 'habituated' to them. For instance, we know that there are paedophiles aplenty 'habituated' to getting oral sex from minors. I fear that the Bombay High Court has set up a criterion so broad that in the very near future, our films will literally leave nothing to the imagination. As a card carrying liberal, this should please me no end, but as is often the case, I now fear my own freedom. We can only take solace in the fact that we do not really have to see anything that offends us.

External events, too, seem to be moving in the same direction. Indeed, Arun Jaitley anticipated the 'Udta Punjab' case by appointing the Benegal Committee on the first day of January 2016. He wanted it to examine the feasibility of replacing our censorship norms with some sort of certification regime. It submitted its first report on April 26th this year. It is early days yet but already, it is clear that the era of deleting scenes from films has passed. Films in future will have one of a variety of possible certificates representing their suitability of viewing. More significantly, the committee has taken the view that

"It is not for the CBFC to act as a moral compass by deciding what constitutes glorification or promotion of an issue or otherwise. The scope of the CBFC should largely only be to decide who and what category of audiences can watch the depiction of a particular theme, story, scene etc,…"

This brings me back to my problem with the maids at home. Indian cinematographic norms are moving to an extremely liberal position, but our laws in general continue to be entirely conservative. Taking only our criminal code, sexual harassment aside, Sec 293 sentences an offender to three years in jail for exhibiting any obscene object to any person under 21 years of age. Who is to say what object gets exhibited in an explicit movie scene! Section 294 similarly convicts anyone who 'sings, recites or utters any obscene song, balled or words, in or near any public place'. What about that old Mehmood double entendre' movie about "Sticking it in your hand on a dark night"? Section 509 condemns a person to three years in jail for anyone who 'intending to insult the modesty of a women….exhibits any object intending…..such objects shall be seen by such women'.

Explicit movies run at home raise the spectre of multiple potential crimes in an environment where the underprivileged are increasingly becoming aware of their rights, to say nothing of the opportunity inherent in entrapping the babu in a crime. I fear that unless we take a holistic view of many of these crimes that are really opportunities, our courts are going to be clogged with a lot of cross class cases created by a censorship regime that was too liberal for the society in which it operates.

The author is Managing Partner of the Gurgaon-based corporate law firm N South. His bestselling expose of the real world of Indian courts "Legal Confidential", released in November 2015

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