Justice Madhukar held-
“The right of freedom of speech cannot be taken away with the object of placing restriction on the business activities of a citizen. It can be restricted only in the interest of the security of state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. It cannot like the freedom to carry on business be curtailed in the interest of general public”.
There has been a debate as to whether the term ‘reasonable restriction’, as used in the constitution, also includes ‘total prohibition’.
In A.K. Gopalan vs. State of Madras[20], Justice Patanjali Sastri, Chief Justice Kania and Justice Das tried to explain the term ‘restriction’.
Justice Das was of the view that “the word ‘restriction’ implies that the fundamental right is not destroyed in entirety but part of it remained.”
Justice Patanjali Sastri was of the view that the term did not mean ‘total prohibition”. Chief Justice Kania interpreted it as ‘partial control’ and distinguished it from deprivation. Later, the Supreme Court in another decision[21] interpreted the term to mean “total prohibition” where the restriction was reasonable. It is submitted that what is restrained is not the “Fundamental Right” which continues unaffected, but the ‘exercise’of it. The restriction when it is unreasonable does not affect the right and when it is reasonable it only restrains the exercising of that right. Such a restraint on the exercise of the right, when reasonable, may be partial or total.
II. Law of Film Censorship in India
Various legislations have provisions to regulate both the print and electronic media. These include the Indecent Representation of Women (Prohibition) Act, 1986, Press Council of India Act, 1978, Press (Objectionable Matters) Act, 1951, Information Technology Act, 2000, and most importantly in the context of this article, the Cinematograph Act, 1952.
The Cinematograph Act, 1952 has been passed to make provisions for certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematographs. Under the Act, there is provision for the constitution of a board called the Central Board of Film Certification (CBFC), popularly called the censor board, by the Central Government.[22] The purpose of the Board is to sanction the films for public exhibition. The Board may, after examining the film with the help of advisory panels at regional centres, either sanction the film for unrestricted public exhibition[23], or may sanction the film for public exhibition restricted to adults only[24], or it may sanction the film for public exhibition restricted to members of any profession or any class of persons keeping into account the nature, content and theme of the film[25]. The Board can also direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition.[26] The Board can even refuse to sanction the film for public exhibition.[27] When we analyze the above provisions, then we find that the Board has very wide powers with regard to sanctioning of a film for public exhibition.
In fact, if it refuses to sanction a film for exhibition, then
such
a film cannot see the light of the day. While examining
the
film, the
CBFC can refuse to certify a film on the grounds enumerated
under Section
5B (1) of the Act, which states that a