The Slow Death of Artistic Freedom in India – Slate

This article is part of the Free Speech Project, a collaboration between Future Tense and the Tech, Law, & Security Program at American University Washington College of Law that examines the ways technology is influencing how we think about speech.

Fan fiction isnt big in India, so it was surprising to see the collective imagination of the country go into overdrive in November 2015. The subject of the frenzy was Sam Mendes James Bond film Spectre, thanks to reports that the Central Board of Film Certification, Indias censor board, had shortened a kissing scene between actors Daniel Craig and Monica Bellucci by half. In no time, there were memes about sanskari Bond. Sanskari could be loosely translated to being traditionally cultured, especially according to Hindu sensibilities. Twitter went to town about how sanskari Bond would prefer milk over a martini. Most of these jokes were aimed at thenCBFC chief Pahlaj Nihalani, a modest Bollywood producer from the 1990s whose appointment came only a few months after he produced multiple music video tributes to Prime Minister Narendra Modi.

The debate between what is appropriate for Indian societyand with that, a tendency to rein in filmmakers rights to free speechhas existed as long as the independent Indian state. However, things have taken a turn for the worse since the right-wing, nationalist Bharatiya Janata Party, led by Modi, came to power in 2014.

While the censorship in Spectre was mocked, it was soon followed by two instances that proved to be flashpoints for the discourse about free speech in India. In 2017, the title of filmmaker Sanal Kumar Sasidharans Sexy Durga was denounced for denigrating the name of a Hindu goddess and became the topic of prime-time debate for a few months. Any film exhibited in a public space in India needs to be certified by the CBFC, and Sexy Durgas release was held up for a few months. During that period, Sasidharan appeared at a leading news channels annual conclave, where an anchor claiming to play the devils advocate asked him, Why not make a film called Sexy Fatima or Sexy Mary? He went on to add, Theres a sense that because Hindus are more liberal, you can take liberties with Hindu sensibilities. But nobody would dare mess with Muslim and Christian sensibilities.

Sexy Durga was finally given a U/A certificate (equivalent of a PG-13) on the condition that Sasidharan agree to call the film S Durga. The director bowed. However, that didnt stop the Ministry of Information and Broadcasting from dropping it from that years International Film Festival of India lineup.

Around the same time, director Sanjay Leela Bhansalis (erstwhile named) Padmavati was in the crosshairs of a fringe group called Karni Sena. Founded with the purpose to protect the pride of the Rajputs, a community belonging to the state of Rajasthan, the Karni Sena assaulted Bhansali for a rumored dream romantic sequence between Rani Padmini (a goddess for the Rajput community) and the films Muslim antagonist, Alauddin Khalji, an emperor from the late 13th and early 14th centuries. Leaders of Karni Sena issued death threats to the films actors, which were amplified by state-level BJP ministers using sensationalist bounties. The film was eventually cleared for release after filmmakers agreed to the censor boards five suggested changes, including changing the title from Padmavati to Padmaavat, the original title of the 16th-century poem the film was based on.

The censorship was no longer about nudity, gore, or promiscuity. It had firmly set its sights on whether the films narrative matched the right-wing Hindu nationalists narrative. Was it boosting the popular Hindu pride sentiment based on which the BJP was elected? Or was it critiquing it?

The sheer number of cases might hint at a coordinated campaign to intimidate streaming platforms into treading cautiously.

In the past six years India has fallen from 27th to 53rd on the Democracy Index, published by the Economic Intelligence Unit. During this period India also slid from 133 (in 2016) to 142 (in 2021) in press freedom rankings, and was labelled a partly free state by Freedom House. This downslide might be an indicator for how artistic expression has been stifled in the last few years.

And the worst could be yet to come. On June 18, the Ministry of Information and Broadcasting released the Cinematograph (Amendment) Bill 2021, which could prove to be the knockout punch for artistic freedom in India. One of the proposed amendments grants revisionary powers to the central government even for films already certified, based on complaints relating to the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency, morality, or anything involving defamation or contempt of court or is likely to incite commission of any offence.

This proposed amendment is only the latest in a series of steps taken by the establishment to control free speech. One of the first signs of the new era of censorship in Indian cinema came with the appointment of Gajendra Chauhan (best known for appearing in the 1988 TV show Mahabharat) to run the countrys premier film institute, Film and Television Institute of India, which is government-funded. Outraged that his connections to the BJP seemed to be his biggest qualification for the job, FTII students went on strike for 139 days, but it didnt change anything. Chauhan held the position till March 2017, and during his tenure the campus witnessed some alarming shifts. Filmmaker Prateek Vats, a student during Chauhans era, told me there were strict rules about what movies could be screened for students, and sometimes police were deployed to make sure the content was appropriate. According to Vats, some workshops were canceled because the adjunct faculty running them were deemed problematic. Chauhan later resigned, but his successor, Anupam Kher, also has ties to the BJP government. His wife, Kirron Kher, is a BJP member of Parliament, and he has repeatedly endorsed Modi on his Twitter handle. Kher served as the FTII chairperson till October 2018.

Meanwhile, former Central Board of Film Certification chief Leela Samson tendered her resignation in January 2015, after a tenure of nearly four years, as protest against political interference in the censor boards inner workings. Samson was replaced by Pahlaj Nihalani, who was responsible for the cutting of the Spectre kissing scene. Soon after, the board proposed 89 cuts for filmmaker Abhishek Chaubeys Udta Punjab (2016). The case was argued in front of the Film Certification Appellate Tribunal, a body set up to hear filmmakers aggrieved by the rulings of the CBFC, and the film was finally passed with just one cut.

Nihalanis tenure peaked with Alankrita Shrivastavas Lipstick Under My Burkha, which was initially denied a certificate for, in the words of a letter from the CBFC to the films producer, being too lady-oriented and for its contentious sexual scenes. Following overwhelming support on social media, Shrivastavas film was presented before the FCAT, which cleared it for release with an A (or 18-plus) certificate.

Nihalani was replaced in August 2017 by famous lyricist and ad filmmaker Prasoon Joshi. Only a few months after his appointment as CBFC chief, Joshi went on to interview Modi at a widely televised town hall event in London, where his poetry on the prime ministers fakiri (an ascetic whos given up material pleasures) became the stuff of legends. And memes.

Vats tells me that the FTII machinerys (under Chauhan) intent to curb free speech always hid under jargon like disciplining or streamlining of resources. Internationally renowned filmmaker Anand Patwardhan reaffirms Vats theory about how bureaucracy helps sidestep the need to actively censor films by placing its own people in key administrative positions. Patwardhan told me how the Mumbai International Film Festival introduced the requirement of a censor certificate in 2003, a year after deadly riots in the state of Gujarat, where Modi was then chief minister. Modi was the subject of intense criticism, including in many films (such as Rakesh Sharmas Final Solution) that would normally have appeared at the festival. When Patwardhan and his colleagues protested and organized a successful rival festival, the government had to withdraw its rule.

Technically the MIFF doesnt have a censor clause anymore, but Patwardhan explains how by cherry-picking the people in the selection panel for the festival, the government keeps out films even remotely critical of the establishment. They no longer have to give a reason as to why a certain film cant play at the festival. They did that to my film Reason, which won Best Film at IDFA [in Amsterdam], says Patwardhan.

In recent years, filmmakers realized that they could be less restrained with their critique of political or religious ideologies on streaming platforms. Shows like Sacred Games, on Netflix, didnt come under the ambit of Cinematograph Act, and thus the censor board couldnt dictate terms. But the critics soon realized it, too. After Sacred Games was rebuked for an unflattering reference to former Prime Minister Rajiv Gandhi, the streaming services took it as a warning and agreed to self-censor. In the coming months, BJP affiliates on Twitter criticized shows like Leila (on Netflix) and Pataal Lok (on Amazon Prime) for depicting Hindus and Sikhs in poor light. An Hindu nationalistaffiliated magazine filed a case against The Family Man (on Amazon Prime) for creating sympathy for terrorists. There was outrage over filmmaker Mira Nairs BBC adaptation of A Suitable Boy (on Netflix), which showed a Hindu woman kissing a Muslim man with a temple in the backdrop.

Things reached a boiling point with Amazon Primes Tandav in 2020. The show, created by director Ali Abbas Zafar, was flayed on social media for its insensitive depiction of Hindu gods, who are seen satirizing social media in one scene. Multiple police complaints were filed against makers, Amazon Prime, and even individual actors across several states. Amazon Prime and Zafar issued an immediate apology, along with the assurance that the offensive scenes had been removed. The head of Amazon Prime (India Originals), Aparna Purohit, was denied anticipatory bail (a preventive version of bail for someone anticipating arrest following a police complaint) from the Allahabad High Court citing how filmmakers ridicule Hindu Gods and Goddesses. A week later, Purohit was granted anticipatory bail by the Supreme Court. Ultimately, no one was arrested and most of the noise around the complaints died down a few weeks later. The sheer number of cases might hint at a coordinated campaign to intimidate streaming platforms into treading cautiously.

Only a few days after the Tandav controversy, the MIB unveiled the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (which I will call the Intermediary Guidelines). In addition to social media platforms, the Intermediary Guidelines extend to digital news publications as well as streamers like Netflix and Amazon Prime, among others. DigiPub News India Foundation, a body of digital media organizations that works to ensure a robust news ecosystem, called the rules a strike on democracy. According to the guidelines, any complaint against a streaming show could result in the platform being warned/censured/admonished/reprimanded, required to apologize, or asked to modify content if it was found violating the code of ethics. As we saw in the case of Tandav, the code of ethics could have broad implications.

Lawyer Devdutta Mukhopadhyay, who has worked on digital rights issues in India, called the guidelines deeply worrying, particularly because the legislative branch was not consulted at all.

Barely a month after enacting the Intermediary Guidelines, it was reported that the Film Certification Appellate Tribunal and several tribunals had been abolished. Established in 1983 as a last resort for filmmakers to appeal against any grievances they might have against CBFC, the FCAT will have its now instead directed to a high court or the Supreme Court.

Vats says the Cinematograph (Amendment) Bill, 2021, might be the death knell for artistic freedom in India: How do businesses work? When one isnt sure about anything, theyd rather not do it, right? So, the self-censorship will begin, and youll see a spurt of patriotic films, mindless comedies. Any random body could raise an objection tomorrow. Any local bureaucrat could have an issue with a filmthe traffic police could say our profession hasnt been depicted properly. When you open it up like this, when does a film get finished?

Patwardhan fears he might be one of the governments primary targets if the bill gets enacted. The most frightening and preposterous thing is that theyre giving themselves the power to withdraw certificates issued under previous governments. All my films have run into censor trouble. Previously, he said, CBFC certificates had been my shield of armor in many cases, because right-wing mobs have attacked screenings of my films on multiple occasions. But because the film had a censor certificate they couldnt do it legally. For instance, at Ambedkar University in 2019, a screening of Ram Ke Naam (1992) was disrupted by members of ABVP, the student wing of the RSS. But after the enactment of the Cinematograph (Amendment) Bill, 2021, the government might put all of Patwardhans (heavily anti-establishment) films through the censor process again and officially cancel all his censor certificates if he refuses to comply with the suggested changes.

The good news is that this hasnt happened yet. According to a circular dated July 26, the Ministry of Information and Broadcasting has stated that the proposal to amend the Cinematograph Act is still in a consultation stage. Vats and Patwardhan are optimistic that the legislation wont stand in court, given there are many precedents that have upheld an artists right to freedom of expression.

Advocate Ashim Sood called the proposed amendments a serious concern. Sood notes, Weve seen how the police file sedition cases based on Facebook posts. Similarly a complaint could possibly reverse a censor certificate. He thinks it will be particularly damaging to independent filmmakers. Like a good fascist power, [the government] want[s] to stifle dissident voices. My hope is that people will stand up against it. The moment they try to pass this bill in the parliament, well have to challenge it in court and Im sure well win, Patwardhan says.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

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The Slow Death of Artistic Freedom in India - Slate