Freedom Of Creative Expression V. Popularity Test: A Constitutional Dissection

This is not the first instance rather a film named 'Token Number' did face the same objection for using the character name 'Janaki' where she eloped with the person named 'Abaraham' and the producer of the film was asked to change the name. The question which stuck to my mind is, 'Are we governed by Constitution of India or by Majoritarian views or by Popular voices?'

Freedom of Expression

It is a right available to citizens of the country where they can exercise their will; represent their desire, opinions and convictions freely by way of writing, printing, graphical representation, speech or any other options available. It includes the expression of one's ideas through any communicable medium or visible representation, such as gesture and signs. The term 'expression' includes the term 'publication' also which means freedom of press is also included in it, thus above situation falls within in the ambit of Article 19.

Popularity Test

It is a term which is being given to individual or group altogether that holds views which aligns to their radical thinking which has no backing from the Constitutional law or statutory provisions. They are also called 'fringe groups', who either have some political backing or being associated with particular religious outfits.

What is in name?

In country like India, where common names are ascribed to God or Goddess, and general tendency of the countrymen to give names to their child after Goddess, it is quite difficult to avoid such name thus asking for trouble. Naming character of a film 'Janaki' is a mere expression of one's creative mind and which ultimately falls within the ambit of Article 19(1)(a) of Indian Constitution, thus any restriction upon the freedom of expression could be curtailed only on the grounds specifically mentioned under Article (19)(2) and that a law enacted by the legislature, which does not come squarely within Article 19(2) would be struck down as unconstitutional^[1]. These directives of the Central Film Certification Board is nothing but setting a disturbing pattern, representing the popular views of some ultra-radical groups, thus widening the scope of censorship.

Test of Reasonable Restriction

The restriction mentioned under Article 19(2) on the exercise of expression can be imposed by law, but not by executive and departmental actions. The restriction stated under Article 19(2) should not be arbitrary or excessive in nature beyond what actually needed for serving the interest of common people. It must be something imposed with utmost care and with possible reasons. However, it is quite difficult to lay down the exact formula to test the components of the reasonability which differs with case to case. Each case has to be judged on its own merits.

Film Censorship in India: Judicial Trends

In the case of K.A. Abbas v. Union of India^[2] the question, whether prior censorship of film is included in Article 19(2) came for the consideration of the Supreme Court of India. It was held that pre censorship of films is justified under Article 19(2) on the grounds that films have to be treated separately from other forms of art and expression. Hence, classification of films on two categories A (for adults only) and U (for all) is held to be valid.

However, at the case in hand there is no problem related to granting of certificate (A) or (U) but the objection is on the using of name 'Janaki' which is a part of creative expression by the producer hence it is not tenable to ask for deletion of the name.

In the case of Manohar Lal Sharma v. Sanjay Leela Bhansali^[3], it was held that Central Board for Film Certification is expected to take the decision with utmost objectivity as per the provisions of Cinematography Act, 1952 thus the objection of CBFC is not seems to be objective where the name is the only hindrance and which is primarily based upon the pressure of radical's outfits.

Creative instinct of the individual should be respected which is founded on the gift of imagination, or imagination transformed into reality, hence they found protection from within in the form of artistic license.

Doctrine of Proportionality

The doctrine of proportionality is a legal principle that states that the actions or measures taken by a public authority must be proportionate to the objective pursued. In other words, the authority should not use more force or impose more restrictions than necessary to achieve a legitimate goal. Hence in the given case in spite of halting the release of whole film CBFC could ask for removal of name and using any alternate name.

Majoritarian Views v. Constitutional Principles

Another instance of going against the values of the Constitution in Kerala, where the state government has introduced the extra-curricular activity namely 'Zumba classes', the object was to lessen the impact of stress and to divert the energy and interest of the students away from drugs towards more productive works. Zumba is also one of the ways of expression and could not otherwise be curtailed except as provided under Article 19(2). This innovative step has been criticized by Islamic clerics calling it a degradation of 'moral values' and violation of fundamental religious values of Islam.

In India, we are governed by the principles of the constitution which is supreme, among the various principles of the Constitution, one which assumes greater importance to the fact stated is principle of 'constitutional morality' which describes Indian Constitution as an organic document means the constitution should be interpreted keeping in mind the changes which society undergoes at the same time keeping all its fundamental principles intact. It encompasses the idea that constitution is not just a document containing piece of paper but also a moral one which reflects the shared values and aspirations of the society.^[4] In Indian setup Constitution is paramount, we ascribe to the values of the constitution and to denounce every practice which is against the basic's tenets of the constitution, there is no place for individual or collective opinion unless they confirm and in accordance with the constitution of India.

Public authority should not act as a guardian of dissent fanatic groups, rather their duty is to uphold the Rights envisaged under constitution in best possible manner so as to inspire the confidence of the people of India in the working as well as in the enforcement of the document called Constitution. In a country governed by Rule of law such mishappening must be avoided and be treated by full vigor of law.

The author is a senior research fellow at Faculty of Law, Banaras Hindu University. Views are personal.