Religion and Censorship in Indian Media

SUBMISSION IN THE SUBJECT OF

MEDIA LAW

By

GAURAV SINHA

5th YEAR BA.LLB (Hons)

BA0130021
Table of Contents
Abstract ................................................................................................................................................... 3
Research Questions ................................................................................................................................ 3
Research Objectives ................................................................................................................................ 3
Hypothesis............................................................................................................................................... 3
Introduction ............................................................................................................................................ 4
Various provisions relating to Censorship in India ................................................................................. 4
1. The Constitutional Framework of Censorship ............................................................................ 4
2. Censorship provisions in Criminal Law........................................................................................ 5
3. Censorship in Cinema and Television ......................................................................................... 7
Extra-Legal Censorship of Media ............................................................................................................ 8
1. Restriction on Religious Expression ............................................................................................ 8
2. Restriction of Expression on Religious Grounds ....................................................................... 10
Conclusion ............................................................................................................................................. 11
References ............................................................................................................................................ 11
Abstract
Article 19 under Indian Constitution grants freedom of speech and expression to citizen. Article
19(2) contains the grounds on which freedom of expression can be restricted. Apart from the
restrictions listed out under Article 19(2), there is another ground on which freedom of
expression is restricted- Religion. Article 25 gives freedom to profess and propagate religion
of one’s choice subject to public order, morality and health. There are some situations where
any medium of expression has hurt the religious sentiments of people.

Thus the purpose of the paper is to examine such instants and what role it plays in the
censorship of Indian media on the ground of religion.

Research Questions
1. What are the legal framework for censorship in India?
2. What are the extra-legal dimensions of censorships in India?

Research Objectives
1. To examine the issue of religious censorship, legal and extra-legal (social),
encompassing the various forms of religious censorship
2. To analyse the censorship in Indian media in the light of various statutes

Hypothesis
The researcher believes that current legal framework is not healthy for the freedom of
expression. The current statues are time and again misused and need more scrutiny on the same.
One such example was section 66A of Information Technology Act, 2000 which is now struck
down.
Introduction
The relationship between religion and freedom is very strange because religion requires media
for propagation and at some instance this very media which helped religion growing up is
attacked by religion. Any form of media for example books, film etc. if have any potential to
disturb religion could be contentious. The immediate reaction to these kind of situations is to
suppress it by law or social pressure. For tackling these kind of issues it is important to note
that this is not an one dimensional issue and have many angles to look at. SO for this different
kinds of censorships has to be studies especially extra-legal or social framework.1

Various provisions relating to Censorship in India

Legal control on censorship cannot be only on the basis of religion or blasphemy. Constitution
of India cannot abridge the rights through its other provisions eg.-Article 19 and art 25. Free
speech is regulated by constitution and other statutes which draw reerence from constitution.

1. The Constitutional Framework of Censorship

Article 19(1) (a) gives the rights with respect to media through free speech. The courts have
allowed to exercise of rights under Article 19 to shareholders of corporations.2.

The right granted under Article 19 (1) (a) is not absolute and are subject to restrictions on this
right under Article 19 (2). The grounds under which restrictions may be placed are exhaustive
and restrictions cannot be placed under any other ground.3

A religion is not included in Article 19(2), it cannot be treated as valid ground of such
restriction freedom of speech. So the major question arises here is that on what grounds State
or Central government impose ban on various forms of expressions like on publication of book,
screening of movie etc? Is it because all these expressions are hurting religious sentiments?
These are very important questions because such orders by government or from court becomes
extra legal if it is not justified ion the basis of constitution.

1
Melody Patry, India: Digital freedom under threat? Policy Paper, November 2013 available at
https://www.indexoncensorship.org/wp-content/uploads/2013/11/india_digital-freedom-under-threat.pdf
last assessed on April 14, 2018
2
Bennett Coleman v. Union of India, AIR 1973 SC 106
3
O. K. Ghosh v. E. Joseph, AIR 1963 SC 812; Sakal Papers v. Union of India, AIR 1962 SC 305.
In order to maintain public order any form of expression threatening the religious sentiments
of any group could be banned. The reason is that such expression could incite violence resulting
in disturbance in public order.

Article 25 guarantees all persons the right to practice really process and profit religion but are
subject to restrictions provided under article 19 like public order, morality, health and other
provisions of part 3 fundamental rights. Article 25 gives freedom to profess practice and
propagate religion. Article 19 provides restriction for the same. On combined reading of article
19 and 25, it can be derived that a citizen can practice right of freedom of speech and expression
but the same right would be subject to certain reasonable restrictions that mean that statement
was under article 19. 4

In Virender vs State of Punjab, 5where there was agitation in the state of Punjab due to the
division of state on the basis of linguistic and communal bases which was supported Akali
party and was opposed by Hindus. The situation became more tensed when a movement
named “Save Hindi” was launched. Because of this communal tension the state government
came up with law which impose restriction on newspaper. The restriction included the ban on
publication of newspaper which threatens communal harmony. The petitioner when subjected
to restrictions under article 19 (1) (a) and 19 (1) (g). The petitioner claimed that the
restrictions under the said provisions does not include religion and so impermissible under
article 19 (2) and 19 (6). The court dismissed the claims by the petitioner and held that such
restrictions imposed must be measured with regard to the test of reasonableness laid down in
State of Madras v. V.G. Row6 and Ramji Lal Modi v. State of U.P7. In above two cases it was
stated that the scope of expression in the interest of used in Article 19 (2) was held to be valid
and the imposition made by the state of Punjab in the above was held to be coming under in
the interest of under article 19 (2).

2. Censorship provisions in Criminal Law

Indian Penal Code also contains certain provision which impose restrictions on expression in
the media on the grounds of religion. Section 295A penalizes malicious acts which are intended
to create disorder among any class of religious group by insulting or outraging its religious
beliefs. Section 298 penalises any intention to hurt the religious feelings of. In Baburao Patil

4
Harini Sudershan, Religion And Censorship In The Indian Media: Legal And Extra-Legal, NALSAR Law journal
5
Virendra v. State of Punjab, AIR 1957 SC 896
6
State of Madras v. V.G. Row, [1952] S.C.R. 597, 607
7
Ramji Lal Modi v. State of U.P., AIR 1957 SC 620.
v. State8 who published articles in monthly magazine call Mother India was criticized. The two
articles contained the political theses of Mughals and the naming of roads in Delhi in the owner
of Mughals based on the basis of history the articles contained allegations against Mughal and
the naming of roads in Delhi in the owner of Mughals. The articles meant to showcase Muslims
as the proud descendants of the foul Mughals. The court was convinced that the articles where
in the nature of spreading feelings of amity, hatred and discontent among Hindu and Muslim
communities. So imposition on restriction on such article is in the nature of reasonable
restriction under article 19 also and so was held guilty under section 153A.

In Ramesh vs Union of India9 removing stay granted by the court against telecasting of serial
title Tamas in question. The serial was condemned to be against public order under article 25
of the constitution and was in nature that it will incite people to commit offences and so it will
likely to spread feelings of enmity, hatred and ill will which is punishable under section 153 a
of IPC. The serial deal with the period just before the partition of India and Pakistan and
displayed the tension between Hindus and Muslims and Muslims and Sikhs. The serial
presented the communal struggle between the two religious groups and presented how persons
exploited others to achieve their ulterior motives in making their religion on the top. The court
rejected the contentions of petitioner on two grounds firstly there is a mechanism under section
5B where a film first to be screen before the censorship board and to be approved by them. The
censorship board has not approved the film. Secondly High Court Judges who watched the film
where under impression that the film will not inside people to commit any offence or to cause
any public disorder but the supreme court held that if film has to be measured from the standard
of a reasonable strong minded people and not from those who are weak and can be easily
vitiated to commit any crime.

In Babu Khaleel Ahmed v. State10 they were certain book published which was in reply to some
pamphlets praising about a person who was the leader of Hanifs. The book was banned by the
state government alleging that it was maliciously and deliberately intended to offend the
religious feeling of the class. The court upheld the same and imposed restriction on the
publication of the book.

8
Babu Rao Patel v. State (Delhi Administration), AIR 1980 SC 763.
9
Ramesh v. Union of India, AIR 1988 SC 775.
10
Baba Khalil Ahmad v. State, AIR 1960 All 715
 3. Censorship in Cinema and Television
In the case of motion pictures, the Cinematograph Act, 1952, imposes certain restrictions on
exhibition of films, etc. and authorizes the establishment of the Central Board of Film Censors
(“CBFC”) which previews films and certifies them according to certain guidelines. They may
be certified as being fit for unrestricted viewing (“U” Certificate), for partially restricted
viewing (“U/A” Certificate), for restricted viewing (“A” Certificate) or be denied such
certification.11

Cinematograph act 1952 imposes certain restrictions on screening of films and also establishes
Central Board of film sensors (CBFC) to preview films and certify them according to the
guidelines. Section 5B reiterates the grounds of imposition of reasonable restriction mentioned
under article 19(2). Section 5E allows for imposing restriction of a film by CBFC if it is under
the impression that the film for which the certificate has been granted has been exhibited in
some other form for which it was not granted. Section 6 empowers central government to
suspend certificate of film. Religion being very sensitive issue in India these provisions are
easily manipulated to justify the ban on any film on the ground that it will lead to public
disorder and inside people to commit offence.

One such example of censorship on the basis of religion is the banning of the film Da Vinci
Code in several States across India. The film was based on the book written by Dan Brown. It
is a fictious tale around the Holy Grail and the life of Jesus Christ whereas the book suggested
that the Holy Grail actually referred to Mary Magdalene and that the church was in conspiracy
to hide the existence of the connection between Jesus and Mary Magdalene.

There was some protest from the members of Christian community to the idea presented in the
book and the film as well. Even after the Supreme Court denied such protest and petition to
ban the movie in India, some States banned the movie.

One such partition is Sony pictures versus state of Tamilnadu12. In this case the banning of the
movie by the state of Tamil Nadu section 13 of cinematograph act was challenged to be
violative of article 19(1)(a) of the constitution. The film was given permission under section
5B by the CBFC. Issue in the present case was contradiction between Section 5B and section
13 of the cinematograph act. To this it was argued that the film which is a fictious tell is

11
Sections 3, 4 of the Cinematograph Act, 1956
12
Sony Pictures v. State of Tamil Nadu, (2006) 3 MLJ 289
blasphemous to the Christian community. The important question which was to be considered
here was difference in the wording between section 13 and article 19(1). Section 13 uses
“breach of peace” and article 19(1)(a) uses “public order”. This question was answered in
Madhu Limaye v. Sub Divisional Magistrate13 where it was held that the expression public
order is wide and includes breach of peace used under section 13 of cinematography act. The
film uses the word fiction unlike the book written by Dan Brown where it alleged the references
of various places rituals and architecture to be of real.14

The court also took the support in the decision in Lakshmi Ganesh Films v. State of A.P15 where
similar order by the Andhra Pradesh State government banning the screening of The Vinci
Code was challenged and was held invalid while deciding the case Andhra High Court took
the reference of the terms public order used under article 19 and breach of peace used under
section 13 of cinematograph act and was convinced that the film does not require any
censorship and does not violate article 25 of constitution.

Extra-Legal Censorship of Media

Once one enters the domain of extra-legal religious censorship, one enters a land of haze,
without any set rules or parameters. In this situation, censorship of media is carried out not by
any rule of law, but by protests and attacks, verbal and physical, on those making the
expression, and others associated with it. Often, either the State buckles to public pressure to
impose some sort of ban on the expression, or those making the expression themselves step
down. In rare instances, regardless of public pressure, expression is allowed to survive.16

1. Restriction on Religious Expression

Religious expression means an expression by a person who presents a certain version of a
religion or his thought or his understanding of the religion by including a criticism of it.

Reaction to this kind of expression depends on the content, principle adopted to explain the
understanding of religion of his version. One such example is the ban of book by HSC Prakash,

13
Madhu Limaye v. Sub Divisional Magistrate, AIR 1971 SC 2486
14
Subhradipta Sarkar,Right To Free Speech In A Censored Democracy available at
http://www.law.du.edu/documents/sports-and-entertainment-law-journal/issues/07/right.pdf last assessed
on Aril 14,2018
15
Lakshmi Ganesh Films v. State of A.P., 2006 (4) ALD 374.
16
Subhradipta Sarkar,Right To Free Speech In A Censored Democracy available at
http://www.law.du.edu/documents/sports-and-entertainment-law-journal/issues/07/right.pdf last assessed
on Aril 14,2018
PV Narayan and H Nagaveni. Book, the Hindus and alternative history, authored by Wendy
Doniger was accused of attacking Hinduism and has been put under pressure by
fundamentalists forces to ban the publication. In this case the fear of the mob was so strong
that even after a court order to lift restriction on the book, it was never published. Similar
incident happened To film PK and the famous painter Maqbool Fida Husain who’s painting of
Indian goddess was alleged to hurt Hindu religious sentiments.17

Delhi High Court on the ban of PK film observed that constitution protected the right of the
artist to present social reality in all his form and seeing the film was a conscious choice of the
spectator and those who are offended by the content or the theme of the film where free to
avoid watching it.18

What is more alarming in this kind of situation is that the mob or the crowd who comes for the
protest of this kind of religious expressions are forces which are operated by the politics which
clearly poses a serious threat to free thinking and freedom of expression. Time and again films
books and free speech very targeted in the court and in the public. IPC has been wrongly used
in the Court. In informal ways like Fatwa, physical violence and threats have been used by this
kind of forces. Rajiv Gandhi government banned the import of the book Satanic Verses under
the customs act. The government cited the threat to public order and morality in banning the
book.19

Despite Constitution of India gives commitment towards free speech and expression, the legal
system in India makes it difficult to silent this kind of crowd who are against this kind of
expression. Article 19(1)(a) of India constitution guarantees freedom of speech and expression
as a fundamental right and article 19(2) provides a reasonable restriction on such freedom of
speech and expression but the restrictions provided under article 19(2) are misused by the court
under the pressure of public. With the presence of judicial corruption and police corruption it
becomes difficult for one free thinker to get away from this kind of problems. So there is need

17
Balram k Patwa and Bonny Singh, Religion and Censorship: Legal and Extra-Legal Scenerio, 5th ed. Lampert
Publication
18
Faisal Devji,changing contours of censorship,The Hindu available at
http://www.thehindu.com/opinion/lead/changing-contours-of-censorship/article5719569.ece last visited at
14th April, 2018
19
Aditya Kumar Panda, Case Study: Film Censorship In India, Scholedge R&D Center Censorship- a-case study
available at http://shodhganga.inflibnet.ac.in/bitstream/10603/70234/8/chapter6.pdf last assessed on Aril 14.
2018
to re examine the sections 153A, 295A of IPC which restricts the expression under the cover
of reasonable restrictions.20

2. Restriction of Expression on Religious Grounds

So far social censorship of religious expression has been received mainly through the use of
force intimidation and violence.

Bharat Mata painting by MF Hussain was withdrawn from going into an exhibition after a
persistent threat and attacks by members of Fundamentalist Hindu groups- Bajrang Dal
Shivsena and VHP. The painting techniques was of nude women outline resembling the map
of India the painting was going for an auction in Delhi and the money earned by the auction is
to be utilised for the victims of earthquake in Kashmir. The groups issued started protest against
the MF Hussain in various parts of India. There was public outrage over the paintings and
criminal complaints filed against him under section 153A and 295A. MF Hussain moved to the
supreme court and filed an application in Delhi High Court for quashing the complaint on the
ground that the plan sanction to prosecute as a couple CrPC had not been obtained. Quashing
the petition the Delhi high court held the painting had malicious intent and was intended to
outrage the religious sentiments of Hindus and so will attract punishment under IPC. It was
alleged against him that he refrained himself from painting on any other things from his own
religion and focusing only on Hinduism.21

In this regard Delhi High Court judgement was bad for several reasons. Firstly M F Hussain is
known to be a painter who worked on wide variety of things and his painting on Hindu deities
are only a small subset of all his paintings. Secondly Hussain did not made any paintings on
Islam because such paintings in Islam is blasphemous per se and this kind of paintings in Indian
culture has been made for a long period. Thirdly the interpretation of the paintings of Hussain
is what claimed to be against public morality which in many cases seen as perfectly innocent
for normal mind.

20
Cherian George (2015) Indian history: resisting religious censorship, Media Asia,
21
Avadhi Jain, India: Is Censorship A Necessary Evil? Available at
http://www.mondaq.com/india/x/680434/broadcasting+film+television+radio/Is+Censorship+a+Necessary+Ev
il last assessed on 14th April, 2018 see also Irum Saeed Abbasi and Laila Al-Sharqi, Media Censorship: Freedom
versus responsibility, Journal pf Law and Conflict Resolution
Conclusion
The relation between religion, free speech and media is very complicated. On one hand religion
and media can’t work without free speech on other hand Complete freedom to media could
create problem for religion. So any unreasonable restriction made on media to let survive
religion would certainly be unconstitutional for media as in the case of MF Hussain.

The biggest problem is even where law exists religious censorship on media become harsh.
Delhi high court judgement in MF Hussain case depicted similar situation where court banned
the auction of painting due to public protest.

References
Books

1. Balram k Patwa and Bonny Singh, Religion and Censorship: Legal and Extra-Legal
Scenerio, 5th ed. Lampert Publication

Articles

1. Harini Sudershan, Religion And Censorship In The Indian Media: Legal And Extra-
Legal, NALSAR Law journal
2. Avadhi Jain, India: Is Censorship A Necessary Evil? Available at
http://www.mondaq.com/india/x/680434/broadcasting+film+television+radio/Is+Cens
orship+a+Necessary+Evil last assessed on 14th April, 2018
3. Aditya Kumar Panda, Case Study: Film Censorship In India, Scholedge R&D Center
Censorship- a-case study available at
http://shodhganga.inflibnet.ac.in/bitstream/10603/70234/8/chapter6.pdf last assessed
on Aril 14. 2018
4. Subhradipta Sarkar,Right To Free Speech In A Censored Democracy available at
http://www.law.du.edu/documents/sports-and-entertainment-law-
journal/issues/07/right.pdf last assessed on Aril 14,2018
5. Melody Patry, India: Digital freedom under threat? Policy Paper, November 2013
available at https://www.indexoncensorship.org/wp-
content/uploads/2013/11/india_digital-freedom-under-threat.pdf last assessed on April
14, 2018
 6. Irum Saeed Abbasi and Laila Al-Sharqi, Media Censorship: Freedom versus
responsibility, Journal pf Law and Conflict Resolution
7. Cherian George (2015) Indian history: resisting religious censorship, Media Asia,
8. Faisal Devji,changing contours of censorship,The Hindu available at
http://www.thehindu.com/opinion/lead/changing-contours-of-
censorship/article5719569.ece last visited at 14th April, 2018

Stautes

1. Constitution of India, 1949

2. cinematograph act,1952
3. Indian Penal Code, 1860