The 2018 Bollywood film Padmaavat depicted a 14th-century Muslim emperor’s infatuation with the Hindu queen of a small kingdom in Rajasthan. It led to violent upheaval in the state, with protestors alleging that the film included an intimate scene where the emperor dreamt of making love to the queen, a claim that eventually proved to be untrue. Protestors vandalised cinemas and threatened to chop off the lead actress’ nose. Another political leader announced a cash award for anyone who chopped off her head.

The censor board, whose approval is required before screening any film in India, “advised” five modifications to the filmmakers, including one to cover the waist of the protagonist using computer graphics, purportedly to “befit the character portrayed”. Every restriction to free speech in India is derived from one of the exceptions outlined in Article 19(2) in the Constitution. In its “advice”, however, the censor board did not clarify which law the filmmakers had violated by showing an exposed waist of a queen dancing in the female quarters of a medieval fort. In the absence of such information, filmmakers will be unable to predict what might make the censor board frown, which, in turn, could force them to self-censor to avoid any issues in the future.

Film censorship has a long and chequered history in India. Globally, the British government enacted the first film-related law in 1909 to prevent film stock from causing life-threatening fires, but such laws soon metamorphosed into the regulation of artistic content itself. In India, the Cinematograph Act of 1918 became a tool to stifle even the remotest dissent against the British government.

For example, the 1921 silent film Bhakta Vidur became the first film to be banned in India because it contained scenes where Vidur – a character from the Mahabharata – appeared wearing a Gandhi cap and Indian homespun cotton clothing. It also depicted many contemporary political events of India. Similarly, the 1939 Tamil film Thyagabhoomi was released at the height of the freedom struggle and was banned for glorifying Gandhi, even including shots of him spinning the charkha. It is, therefore, surprising that independent India retained these coercive restrictions from our colonial masters. In many ways, our cultural freedoms today are more curtailed than they used to be under British rule.

The colonial government banned films only if they promoted anti-government sentiments and threatened the very existence of the colonial project. Consequently, films of those days frequently contained kissing and romantic scenes. Today’s democratic governments, however, not only monitor political dissidence but also impinge on artistic freedoms because a group of people – big or small – find them offensive.

Take the case of India’s Daughter, a 2015 documentary film about the ghastly gang rape and murder that took place in Delhi in December 2012. The film contained an interview with one of the rapists, who seemed to justify his crime, stating that the victim was at fault for being out late at night with a male friend. His lawyer also made unseemly remarks about the role of women in society. Many critics argued that these comments were offensive, denigrated women and created an environment of fear in the country. An MP from the ruling party also argued that it will affect tourism in India.

Supporters of the movie argued that the overall message of the film was that Indian society had become unsafe for women. The interviews with the rapist and the lawyer, they felt, were meant as glimpses into the regressive psyche of the perpetrators. They felt that the film showed us a mirror to the society we have created and that we must acknowledge the grim reality around us by not banning the documentary just because it is unsightly.

These are precisely the complex situations where good institutions with clarity of purpose and independent oversight are useful. Unless such institutions exist, the easy route for governments is to play to the gallery and ban anything that creates trouble, whether justified or unjustified. That is precisely what happened to India’s Daughter as well. The Delhi Police argued that it had “offensive content” and needs to be banned in the interest of “public order”. A court in Delhi granted these restraining orders and the Delhi High Court refused to intervene till the trial court reached a judgment.

Such unchecked discretionary powers at governments’ disposal are a cause of concern in democratic societies, irrespective of whether one agrees with this specific ban or not. Governments will invariably need to ban some films – for example, those that demonise a certain caste or religious group. But society needs to bind governments in rules and processes that force them to transparently evaluate options before pulling the trigger. That, unfortunately, is not always the situation today.

Indian governments’ preferred route to control movies is the Central Board of Film Certification, colloquially referred to as the “censor board”. Every artist seeking to release her film in theatres or on TV needs the board’s prior approval. At Independence, many had hoped that the government would do away with such pre-release censorship – first started in 1920 – just like it had done with pre publication censorship of newspapers that the British had mandated in its last few decades. Their hopes were dashed and the censor board continues today as an institution that does not meet many principles of good institutions.

At the outset, it lacks a clearly defined mandate and is hence prone to broaden its mandate and become a moral police. Noted actor and right-wing icon Anupam Kher, who headed the board in the past, believes that its guidelines leave room for varying interpretations that can be used to ban any film. He adds tha t the censor board often comes across as wanting to stop a film rather than facilitating its release and that it should be re-looked at entirely. Noted filmmaker Ram Gopal Varma went a step further and called for the board to be abolished. He too drew attention to the inconsistency in the board’s decisions. While his 1998 film Satya used cuss words copiously, it was cleared for release. In other cases, however, the board has simply refused to certify a film, thus preventing it from being screened anywhere in India.

For example, it denied the 2016 film Mohalla Assi certification on the grounds that scenes depicting a priest and his wife in Varanasi using cuss words denigrated the holy city. Similarly, it withheld certification for the 2016 film Udta Punjab because of the use of cuss words, a scene showing the protagonist urinating on a crowd, references to the state of Punjab, elections and MPs and the absence of a disclaimer that acknowledges the work being done by the state government in tackling the menace. In both cases, the producers of the film approached the courts, which ruled in their favour.

Most importantly, the board is not truly independent because its members are directly appointed and removed by the central government, with few safeguards. As early as 1969, a committee appointed by the government and headed by a retired high court judge suggested that the censor board be made independent of the government. This has, however, not been acted upon to date. Instead, under amendments proposed in 2021, the central government has sought powers to overturn any decision of the censor board. Even when the censor board gives the go-ahead, governments have other means to stop a film. For example, the government of Gujarat banned Padmaavat through a state law dating from 2004.

Under the law, the government is free to ban any film that it feels can disturb “public order”. It does not need to justify why it felt that way or provide specific intelligence that the film will lead to any law-and-order issues. In fact, the law provides an easy route for vigilantes to get a film stopped, first by creating a ruckus about it and then asking the state government to use this law.

Excerpted with permission from Caged Tiger: How Too Much Government Is Holding Indians Back, Subhashish Bhadra, Bloomsbury India.