BY AKANKSHA SOOD.
The Supreme Court recently, in the case of Viacom 18 Media Private Limited and Ors. v. Union of India and Ors., held that once an expert body has determined the suitability of a film to be screened for the public, the State cannot refuse a film for public exhibition on the grounds that it may imperil public order.
The power to refuse a film for public exhibition on the grounds of public order is conferred upon the Central Board of Film Certification (CBFC). While originally referenced under Section 4(1), it is now governed by Section 5B of the Cinematograph Act, 1952. A perusal of this provision makes it patent that it is directly related to the restrictions on free speech espoused in Article 19(1)(a) of the Constitution, which also embodies the right to protest. Under Article 19(2) of the Constitution of India, “reasonable restrictions” can be imposed on the freedom of speech and expression 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 offense.
With this preliminary discussion, it can be said that censorship in India (and pre-censorship, which is not different in quality) has full justification in the field of cinema exhibition. It is, however, pertinent to note that while the constitutionality of Section 5B has traditionally been analyzed vis-à-vis the denial of freedom of speech under Article 19(1)(a), this article attempts to explore the constitutionality of Section 5B through the lens of the federal structure enshrined in the Constitution.
Seventh Schedule and its Interpretation
When the vires (constitutional validity) of an enactment is impugned, there is an initial presumption of its constitutionality. If there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible, in favor of the Legislature by putting the most liberal construction on the Act.
Although in the case of State of West Bengal v. Committee for Protection of Democratic Rights, the Apex Court held that in a federal structure, the Union is not precluded from encroaching upon the legislative powers of a State in respect of the matters specified in List II of the Seventh Schedule. In the same case, it was also held that by virtue of the principle of federal supremacy, where there is an irreconcilable conflict between the Union and State lists, the supremacy of Parliamentary law will be accorded.
Public Order and the Act
Under Entry 1, List II of the Seventh Schedule of the Constitution (“Public Order”), the State Legislature is given plenary authority to legislate on all matters regarding public order, except for the use of Union armed forces in aid of the civil power.
Conversely, Entry 60 of List I of the Seventh Schedule confers upon the Union the power to sanction cinematograph films for public exhibition. In the case of State of Madras v. Gannon Dunkerley & Co., it was held that a matter mentioned in any legislative entry is construed to cover all matters that are ancillary or subsidiary which can reasonably be said to be comprehended in it.
It is argued that the certification of cinematograph films is dependent on the effect the film has upon public order, and thus, evaluating public order is ancillary to Entry 60 of List I. Moreover, in the case of Naga People’s Movement for Human Rights v. Union of India, where it was contended that the Armed Forces (Special Powers) Act, 1958—insofar as it allowed an officer to use force in the interests of public order—was an encroachment upon Entry 1 of the State List, the Apex Court held that the Act did not primarily deal with public order.
Further, regarding the CBFC’s clearance, the Apex Court has consistently held that once an Expert Body like the CBFC has considered the impact of the film on the public and has cleared the film for exhibition, it is no excuse for a State government to ban it citing a potential law and order situation.
Under Article 246(3) of the Constitution, the State Legislature has exclusive power to make laws with respect to any of the matters enumerated in List II of the Seventh Schedule. However, the entries in the Seventh Schedule are not outright powers, but fields of legislation.
A law can also be attacked on the grounds that its interpretation violates the Constitution’s federal structure. The Supreme Court has time and again stressed the need for consistency with the federal structure enshrined in the Constitution. Ultimately, it is highly unlikely that Section 5B of the Cinematograph Act would be struck down as unconstitutional, owing to the precedents mentioned above that favor its constitutionality; however, it would be interesting to see how the court might rule on a direct federalism challenge.