Udta Punjab Is A Half-Win For Free Speech. Now, How About Satanic Verses?

The Bombay High Court’s decision to release film-maker Anurag Kashyap’s Udta Punjab with just one cut is a blow in favour of free speech. However, the whoops of joy from Bollywood and those who see themselves as liberals are slightly misplaced. The bench did not say that the Central Board of Film Certification (CBFC) does not have the right to order cuts or changes in a movie, but only that such changes should be consistent and not mess around with artistic freedom.

Justices Satyaranjan Dharmadhikari and Shalini Phansalkar said in their judgment: “If, by law, the CBFC is empowered to make changes or deletions, then that power must be exercised consistently and in line with the Constitution and Supreme Court orders.”

This is fine as it goes, but is this ever likely? Do different courts themselves apply the laws on free speech consistently? Would the Udta Punjab case have been decided in a similar manner had it been brought up before the Punjab & Haryana High Court and not the Bombay High Court? When some Muslim groups protested against Kamal Haasan’s film Vishwaroopam, the Madras High Court judge hearing the case asked the film-maker to arrive at an “amicable settlement” with the state government which had banned the film. Replacing the CBFC with judicial oversight is hardly great progress on free speech.

According to The Hindu, even in the Udta Punjab case, the Bombay High Court bench did not dispute the CBFC’s powers, but strongly felt that “in the present case, the CBFC-imposed restrictions were not correct. The movie has to be seen as a whole and it is not permissible to take the characters, scenes and songs in isolation and out of context.” Taking particular exception to the CBFC’s decision to delete the signboard of Punjab at the start of the film, it noted: “Such blanket deletion without reference to the theme and subject of the film is bound to interfere with the creative freedom of the petitioner.”

This is not quite a victory for free speech and expression that it seemed at first look, for what the judges seem to have done is to apply their own minds to what should or should not be cut – a job that would normally have been done by the appellate tribunal above the CBFC. And since the judges themselves agreed to one cut – where the principal character urinates on the audience at a rock concert - one can hardly say the judges themselves are all for creative expression. It is just that they draw the line somewhere else.

This is not to say the CBFC has not messed up royally. It deserves every criticism heaped on it, and the purpose of having a body to certify films is not to convert it into a censor board. Thankfully, a panel reviewing the board’s role is said to have recommended that it should only have powers to certify who can see it, and not actually order cuts. Finance and I&B Minister Arun Jaitley has done well to confirm that the CBFC’s brief is being amended to make it a pure certifying body, and also make it more liberal. He promised “radical changes”.

However, the battle for free speech and expression cannot end here. It is not possible to say film-makers should have creative freedoms and then having the courts acquiesce in the banning of books, paintings, films or other works of art.

The power to ban books or films is too strongly embedded in the constitution’s first amendment, which introduced many unwarranted limits to free speech. Jawaharlal Nehru, while moving the amendments to article 19, said limits were needed since “the citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence.”

But these limits have actually empowered precisely those who promise murder and mayhem. Article 19 prescribes eight restrictions on the exercise of free speech, including threats to the “security of the state”, “friendly relations with a foreign state”, “public order”, “decency or morality”, among others. Isn’t the threat to “public order” often used to ban creative licence and works of literature or films? What will stop a Punjab government from banning Udta Punjab if a small group threatens violence? Will the threats to “public order” be used to ban it, despite the High Court’s elevating words in favour of free speech?

And will the same logic apply if one goes to court seeking a lifting of the ban on Salman Rushdie’s Satanic Verses, or other such book bans?

Clearly, we have to amend article 19 again to ensure that the limits to free speech are defined more narrowly, and not given the widest possible ambit where any spineless politician or district collector will use the “threat to public order” clause to ban anything. Effectively, free speech limits will then be set by street thugs.

Udta Punjab got a nice ending, but one cannot be sure the courts will show equal gumption when other threats to freedom surface.