K.A Abbas v. Union of India & Anr. [1970]

By Aditya Balaji (Student at O.P Jindal Global Law School)

Introduction

Freedom of speech and expression is an utmost core principle upon which democracies are founded upon and function on. A restriction against such freedom of speech and expression is an attack against free will and the very idea of democracy itself. However, the freedom of speech and expression can be a double-edged sword sometimes, as too much freedom can result in negative impact on society resulting in the sentiments of others being injured. Thus, a proper balance needs to be maintained and ensured that the freedom of expression be allowed to an appropriate limit that satisfies the average human being and ensure the protection of all sentiments. Censorship and pre-censorship is one of those problems that has been seen as an infringement of the fundamental right of freedom of speech and expression by many and some see it as a necessary evil or a restriction per se in order to ensure the balance between the freedom of the people and protection of all communities. K.A Abbas vs The Union of India and Another is a landmark case in the field of censorship and pre-censorship in the field of cinema and challenges it on the basis that it is unconstitutional as it hampers the freedom to speech and expression.

Facts

The facts of the case are as follows, K.A Abbas is a playwright, journalist, writer, producer and a director. In 1968, he produced a documentary film called a “Tale of four cities”, where the film in question deals with various socio-economic aspects in the four big cities of India, namely- Calcutta, Bombay, Delhi and Madras. The film focuses on contrasting sequences of the rich and the poor in the respective cities. There is a particular scene in the documentary which covers the red-light district area of Bombay. The scenes in question had various frames where women were shown wearing skirts and exposing their bare legs and knee. One particular scene had a woman closing the shutters of the window implying that she was “entertaining” a customer. Another scene shows a man taking money from one of the women and then giving back some in return implying that it was her boss. The scenes in question basically portray prostitution that existed in the city showing the socio-economic conditions of those that are backward and poor. The director then applied for a certificate to the Board of film Censors and for “U” certificate, implying unrestricted exhibition. However, he got a certificate only for exhibition for adults. He challenged the decision stating that his film portrays the socio-economic disparity between the rich and the poor and that there is no obscenity, however the board responded saying that they would not change their decision and that he could appeal to the central government within 30 days. He did so and the central Government gave him a certificate of “U” however on the condition that he shorten the scenes involving the brothel and cut scenes that included shutting of the windows, exposure of bare knees and the scene involving the transaction of money from the prostitute to the boss. The government mentioned a code  “IC(iii) (b) (c); IV” at the end of the statement. The code meant that:

I: This meant that the film was unsuitable for unrestricted exhibition due to its content 

C(iii)(b)(c): This means that film deals with relation between genders and shows women in immoral traffic and bad light by showing prostitution, soliciting and procuration.

IV: This meant that the film is undesirable to give an unrestricted exhibition certificate as its content was considered unsuitable for the youth.

This led the petitioner to file a case  by claiming that censorship of films is unconstitutional and hampers his fundamental right to freedom of speech and expression.

Relevant Rules

 The relevant rules for the case are as follows-

1) Article 19(1)(a) of the Indian Constitution:

“19. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;”

2) Article 19(2) of the Indian Constitution:

“19(2).Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause 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

3) Section 5.B of the Cinematograph Act 1952:

“5B. Principles for guidance in certifying films.—

(1) 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 interests of ¹⁹ [the sovereignty and integrity of India] the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.

(2) Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.]”

Arguments by Petitioner

  The petitioner, K.A Abbas put forth four arguments which were mainly:

1. Pre-censorship goes against freedom of speech and expression.
2. The legitimate restraint on freedom must be on very solid and definite principles and not on abstract or vague ones.
3. A reasonable time limit fixed for the decisions of the authorities in censoring a film
4. The decisions regarding censorship should be taken up by a court or tribunal and not the central government.

Analysis

The then Chief Justice M.Hidayatullah was one of the three judges who precided over the case in the supreme court along with Justices M.Shelat, G.K Mitter, C.A Vaidialingam and A.N Ray. The Judgement was written by the Chief Justice and in it he observed that the third and fourth argument raised by the petitioner were accepted by the solicitor general. It was observed by the court that the handling of such sensitive matters by a special tribunal or the court inspires more confidence amongst the public about the protection of their freedom.

However, the court felt differently about the first two points. It was observed by the court that in the situation of pre-censorship affecting freedom of speech and expression was considered as protection of public decency and is not unconstitutional. The court felt that the section 5.B of the cinematographers act is essentially in line with the article 19(2) of the constitution and found it to be a necessary restriction for the benefit of the entire society. Thus the classification of movies and its restrictions were found as appropriate.  The court found that the censorship with respects to filmography is much more sensitive compared to other forms of arts. The audio-visual medium of films are much more impactful and that is why the court considered the importance of censorship or pre-censorship with respects to films in order to ensure that it doesn’t impart wrong ideas. The court to support the purpose of article 19(2) and for its importance cited the case of Ranjit.D Udeshi v State of Maharashtra which stated that restrictions are sometimes important in the case of freedom in order to ensure the welfare of the general public.  When it comes to the principles that the courts found that the principles should be in such a way that wide discretion not be given to authorities when it comes to censoring.  In order to ascertain what the principles should be in order to ensure proper censorship, a lot of contemplation was done with regards to principles that were used in the United States and in England. Various cases were referred to by the courts to see what principles can be followed here as the Petitioner relied upon the practices there for his arguments . The most common test that the court found use full was Roth’s  test which focuses on the aspect that a the theme of the movie focuses on sexual topics according to standards of society  at a given time and that such films do not have any redeeming quality or that it is offensive according to the  standards of society at that time. However, they were found inadequate as they were not decisive enough and were very ambiguous still  and that the rules of pre-censorship are different there considering how censorship was allowed only after the film has been exhibited. When it came to the English laws, it was observed that our laws were greatly influenced by them and in fact followed very similar laws that were followed there. The court also contended the petitioners argument for the law to be stricken down due to its vagueness. The court stated that merely because a law is vague does not mean it can be taken down. The courts compared this to the US as the courts have constitutional rights to do so meanwhile the same constitutional right does not apply here in India. The case of Municipal Committee Amritsar and another v The state of Rajasthan was cited by the court in order to establish that mere vagueness is not enough for the courts to strike down a statuette. The court however found it important that they help reduce the vagueness between the laws ensuring for them to be more direct and straightforward and more easier to understand and avoiding wider discretion of its usage. The idea that censorship is done so to avoid obscenity and to avoid the spread of wrong message is appropriate and is thus valid under the constitution, however the court pointed it clearly that it is necessary to understand the context such censorships are done and that not everything that is portrayed on the big screen is obscene and the context with they are used in is what should be important in the matter of censoring.  The judgement mentioned the example of the tale of Odeipus and used it as an example to mention how a topic such as incest, that is sensitive is the focal point and used it to drive the point that despite being a Questionable topic the story handled the theme in such a way that towards the end the story shows the consequences and this work sin its favour. Thus, reminding the importance of context.

Conclusion

The case is very important as it shows the importance of freedom and at the same time the necessary restrictions that are required in order to ensure that the community as a whole is protected and ensuring morality and public decency.  The case is an important one as it still has important modern relevance, especially as censorship is still being questioned today and Is a very sensitive topic. The case perfectly explains the double edged sword that is freedom of speech and what a thin line there is between freedom of speech and ensuring the interests of the general public is maintained. The case also helps in understanding how laws function differently in different cases based on the framework of their respective legal system and that what necessarily works there does not mean it can always work here. The case was ultimately held for K.A Abbas, the petitioner as the solicitor general indeed did accept the argument raised by him regarding the need for a separate tribunal or a court to handle such issues and not the central government and the fixation of an appropriate of time in order to ensure a proper decision is take and as did the courts agree to this. Despite denying the first two arguments raised by K.A Abbas, the courts did indeed find holes in this issue of censorship and have come to the rationale about the proper methodology that is to be required and what the approach should be when handling such sensitive matter such as freedom of speech and expression paving way for better law-making in this particular area.