Right to Entertain and Be Entertained: Cinema’s Place in India’s Free Speech Framework under article 19(1) (a)

Abstract

In India, the freedom of speech and expression under Article 19(1) (a) of the Constitution takes a critical aspect of the cinemas which exist here. This freedom implies the right of the film maker to create and that the viewer has the right to be able to enjoy the scenes of such diversity. Nonetheless, this freedom exists in a legal restraint that is determined by the Cinematograph Act, 1952 and the Central Board of Film Certification (CBFC). The issue is that it is difficult to define the boundary between the necessary regulation in the interest of people and unfair censorship that restrains the creative expression. With the rising of the internet, the cinematic world has also taken up the streaming services, short movies on the internet, and an immersive experience. Legal frameworks need to change to govern the new forms and not chip away at innovation. Move on the open and classification systems coupled with an informed citizen opinion on free speech should help cinema to be a democratic and change inducing society.

Main Blog

India which has such a rich diversity in its society, democracy itself is not optional but the life-blood of the republic. Article 19(1) (a) and Article 19(1) (a) in the Constitution of India give all citizens the right to freedom of speech and expression, which has extended beyond the confines of ink and paper to influence the cultural, political, and artistic discourses that took place in our country. The right to speech and expression as part of Article 19(1) (a) of the Constitution of India is one that ought to be considered in a varied number of different perspectives not only in the sense of what is said but also in those directions that communication is done in. The same is developed gradually over time and the imminent technological changes. This has been provided in the case of Ministry of Information & Broadcasting v. As held by Cricket Assn. of Bengal (1995)[1] which is also applicable to the Indian Constitution, the word expression as enumerated under Article 19(1)(a) also covers or encompasses the right of a person to entertain, as well as the right of the receiver to be entertained. Cinema is the most powerful instrument of change in the society and therefore we consider it as the mirror in the society and also a passage of imagination. Compared to text or orally expressed words, cinema is an interactive experience. It is a mixture of images, text, songs and action and together all of these produce tales that get directly to the heartbeat of the people and the soul.

The Supreme Court of India has repeatedly acknowledged that, the freedom of expression does not remain embedded with the purview of oral expression or text, rather, it is not only restricted to communication of all sorts, but also in all types of media, even films. In Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana[2], the Supreme Court held that the right of a citizen to exhibit films on the State channel, Doordarshan, is part of the fundamental right guaranteed under Articlen19(1)(a). The court also reasoned that this right is akin to that of a citizen to put his/her opinion in other forms of media such as newspaper, magazines, journals, etc.

The statement Right to Entertain and be Entertained gives life and meaning to this guarantee in the constitution. It appreciates a reciprocity of discourse, between the creator and the audience, the creator- right of stating a message, the audience- right of getting the message. That is exactly the democracy in action: democracy as an active giving and taking of ideas, stories, assent and dissent, values and heritage.

Social commentary has usually traveled through cinema. The path of political taboos, social inequalities, and historical mishaps have always been inside the direction chosen by filmmakers. Such freedom of speech and expression is guaranteed in the constitution as their right to do it. In Phantom Films(P) Ltd. v. Central Board of Film Certification[3], the court emphasised the importance of allowing young filmmakers the freedom to chart out a different and newer approach to social issues. Simultaneously, the citizens themselves, essentially, the recipients of such art, are constitutionally entitled to be presented with varied views of the world, to be challenged, evoked or even to become outraged.

There is however, one critical point to remember, and it is, that this right is not frictionless. The Cinematograph Act, 1952, and the Central Board of Film Certification (CBFC) operate as some sort of gatekeepers, often blurring the very fine line between regulation and censorship. Reasonable restrictions by the state in the interests of sovereignty, decency or public order, do exist but those should never mix or be confused as a means of moral policing or political silencing.[4] In K.A. Abbas v. In Union of India[5], it was held that prior restraint by way of censorship of films is permissible in India. The strained relationship between creativity in its artistic efforts and sensitivities in society remains a war zone of legal development.

The medium is changing as well, with time changing the definition of the term cinema, itself widening. The contents of a web drama that is streaming on an OTT platform, a short film posted to YouTube and even a virtual reality experience, can all be under the umbrella of cinematic expression today. The law should also gear itself up to this and in that way the new-age storytellers are not choked by the yester year regulatory principles. The new trend to subject the digital material to the supervision of censorship brings up new threats to the delicate equilibrium between control and gill us.

Cinema is a union of law, art and politics as India carries on its wrenching dialogue with the boundaries of speech. Between agreeing and disagreeing somewhere may be poetical, somewhere revolting may be allegorical and somewhere veritable may seem fictional. In order to fully subscribe to the intent of Article 19(1) (a), the state should not only safeguard the freedom of expression via the medium of cinema, but also the freedom of being countered, and even being disturbed by cinema.

In conclusion, the Indian Cinema is more than a story telling, it is a constitutional expression guarded and fed by Article19(1)(a). Its privilege to laugh, and be laughed at is not a parody of seriousness; it is vital. To save cinema we are also saving not only voice of the artist but the right of audience to have the voice and listen, reflect and feel. The screen is not an inactive background indeed, it is a place of fighting, an educational corridor and a spiritual house. By preserving the cinema and liberty we are preserving the pulse of Indian democracy.

Author: - Shreya Mukherjee, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[1] Ministry of Information & Broadcasting v. Cricket Assn. of Bengal (1995) 2 SCC 161.

[2] (1988) 3 SCC 410.

[3] 2016 SCC OnLine Bom 3862.

[4] Facets of Media Law by Madhavi Goradia Divan.

[5] (1970) 2 SCC 780