It is a fact that documentary films have driven significant advancements in India’s freedom of speech and expression laws.
Whenever a mainstream commercial film—especially from Bollywood—encounters censorship troubles or gets banned, it inevitably grabs the headlines and circulates in the marketplace of indignation for a few weeks before the industry and the law go back to business as usual. Occasionally, though, some of these occurrences escalate into court cases, resulting in decisions that extend the boundaries of freedom of speech and expression. A few notable instances include Raj Kapoor’s obscenity case regarding his film Satyam Shivam Sundaram in the 1970s or Bobby Bedi’s significant victory in the Bandit Queen case in the 1990s. However, while the spotlight remains on these high-profile battles, it is within the relatively less conspicuous domain of documentary films that we have witnessed the most significant advancements in the legal principles governing freedom of speech and expression in India.
For a glamour-obsessed country like India, the legal archives appear as an unexpected site where documentary films actually enjoy a higher prestige than commercial films as custodians of freedom. The reason behind this disparity is evident—the inherently political nature of documentary filmmaking, as compared to fiction films, makes them more susceptible to political censorship in the guise of hate speech and sedition, while fiction filmmakers, more often than not, tend to fall foul of obscenity laws. Unlike commercial filmmakers who often possess extra-legal influence, independent documentary makers, when confronted with the whimsical impulses of the censors, have had little choice but to seek legal remedies through the courts.
The constitutional triumphs of documentary filmmakers are, however, only one part of the story of how documentary cinema has influenced and shaped the discourse and practice of free speech, and this account would be incomplete without an acknowledgement of the dual-pronged approach that has characterised the relationship of Indian documentary film to censorship. These two approaches can be differentiated as a tactical-cum-principled engagement with censorship, and a principled non-engagement with censorship.
Free speech and Indian documentary cinema
Anand Patwardhan, one of the most eminent documentary directors in India, is a representative example of the former. Patwardhan is, arguably, as well known for his free speech cases as he is for his films. Over the years, he has evolved a nuanced strategy of dealing with the censors. It is important to recall that film censorship differs from other forms of censorship. Though you do not require anyone’s permission to publish a novel, you could, after the publication, be subject to cases under different provisions of law, including sedition and defamation. In the case of cinema, however, you cannot exhibit a film before it has gone through a process of censorship. This is what characterises “pre-censorship”.
No film can be publicly exhibited in India if it has not been passed by a body of censors who have granted it a censor certificate. In that sense, the censor certificate serves as the absolute prerogative of the state to determine what can or cannot be seen, and for most filmmakers, it remains the ultimate symbol of a draconian regime that continues to oppress them. Many filmmakers are disinclined, except out of necessity, to apply for a censor certificate.
Patwardhan, on the other hand, unfailingly applies for a censor certificate for each of his films, and he is generally ordered to implement numerous deletions. Needless to say, he refuses and instead chooses to go through the appeal process within the Cinematograph Act, failing which, he finally appeals on the grounds of Article 19(1)(a) to the High Court and Supreme Court against the prescribed cuts.
He has done this successfully with many of his films, including Ram Ke Naam (1992), Father, Son & Holy War (1994), and War and Peace (2002). Many of his films have also received national film awards, and armed with a censor certificate as well as a national award, Patwardhan shifts his battle into the constitutional domain, arguing that right of free speech includes the right to broadcast award-winning documentary films on public television.
For instance, Ram Ke Naam, which examines the build-up to the demolition of the Babri Masjid, was given the national film award for Best Investigative Documentary by the government of India in 1992. When Doordarshan refused to screen the film, Patwardhan filed a writ petition, arguing that this refusal was a violation of his freedom of speech and expression. The Bombay High Court held that the film had been granted a “U” certificate by a board of experts, and the possession of a censor certificate was not a trivial matter as the certificate effectively trumped the guidelines that Doordarshan had laid down for the screening of films. The order also took into account Patwardhan’s concerns that Doordarshan had, in the past, attempted to subvert a similar order by screening the film late at night. In this decision, he even managed to obtain directions from the court that the film must be screened during prime time.
This is just one of many such cases that Patwardhan has been involved in, where he effectively converts the censor certificate, a document of censorship, into a weapon of free speech. Patwardhan has relied effectively on the Supreme Court’s 1979 decision in Raj Kapoor vs Laxman which held that a censor certificate may serve as a defence mechanism against subsequent legal claims against a film, a strategy that is particularly effective when political groups attempt to disrupt film screenings. Patwardhan’s position is a principled defence of the rights of a filmmaker under Article 19(1)(a), even as it strategically deploys the censorship mechanism to extend what is sayable and how it becomes so.
In contrast to this strategy, there are a number of filmmakers who fundamentally disagree with the pre-censorship of cinema and refuse to grant any legitimacy to the film certification process by choosing not to submit their films for certification. They instead screen their films in a samizdat manner, knowing fully well that there are severe legal risks which accompany every such screening. While this strategy places immense constraints on the possibilities of widely publicised public screenings, the filmmakers nonetheless retain a sense of political and artistic autonomy, by virtue of being able to make a version of the film exactly in the manner of their choice, and not having to go through the legal uncertainties of battling the censor board. While seemingly representing two very different ideological and strategic positions on the question of film censorship in India, I would suggest that read together, both strategies tell a rather unique story of free speech, one that is specifically authored by documentary cinema in India.
“The inherently political nature of documentary filmmaking, as compared to fiction films, makes them more susceptible to political censorship in the guise of hate speech and sedition.”
One of the paradoxes of asserting your right to freedom of speech and expression under the Constitution involves a double move where you simultaneously affirm your power as a speaking subject against the state, even as you rely on the state recognising your rights as a speaking subject. One way of understanding this paradox is to recognise that there can be no assertion of the right to free speech under Article 19(1)(a) that does not simultaneously affirm the legitimacy of reasonable restrictions laid down in Article 19(2).
Thus, Patwardhan’s assertion of his right to speak simultaneously expands the realm of what is sayable under the law, even as it depends on an acknowledgement of law and sovereign power as the ultimate source of the legality of speech. In her work on free speech, the philosopher Judith Butler describes this approach as one that does not see the practice of speech as simply being “against” the law, or as law being external to speech, and speech, the privileged site of freedom.
Rather, it acknowledges that censorship and speech have a mutually constitutive relationship, and by redrawing the boundaries of what is sayable in the law, one also sees the possibilities of redrawing the scope and extent of political power itself. A close reading of some of the judgments that Patwardhan has been able to achieve through his court battles bears testimony to this. At issue in a number of these judgments are severely contested domains, including communalism, the rise of the right wing, caste discrimination, and a trenchant critique of majoritarian politics.
In his 2003 victory in the Bombay High Court for his film War and Peace, Patwardhan secured an important counter-majoritarian observation from the court. It concluded: “By suppressing certain view point, it is not only the propagator of the view point who suffers but it is the society at large and equally the people in authority who suffer. This is because they fail to receive the counter-view and it may eventually lead to an immense damage to the society due to an erroneous decision at the hands of the persons in authority in the absence of the counter-view.” This counter-majoritarian principle has, in turn, been affirmed in subsequent judgments on free speech.
If Patwardhan pushes the boundaries of what is sayable through the law, documentary filmmakers who refuse to engage with the censorship process redefine what it means to be a speaking subject beyond the law. By rejecting a predefined criterion of valid speech, these filmmakers run the perpetual risk of being cast out of the realm of legally protected speech. But precisely by doing so, they extend the idea of who may be a speaking subject and consequently advance a theory of speech practice that is not exhausted by law alone. For them, it is not as if censorship and law do not matter. On the contrary, they matter a great deal and that is precisely why it also becomes important to act in a manner as if the law does not matter.
They refuse to subsume the agency of speech entirely into the legal norms that govern what can be spoken. Thus, where a tactical-cum-principled engagement with censorship will presume that anything can be censored, provided the law allows it, those who adopt a principled non-engagement with censorship will presume that anything can be said, provided you know that the law may not allow it.
These two approaches also have a very different imagination of what the publicness of cinema consists of. If the one attempts to use the law to make documentary cinema public or even a mass medium through its broadcast on national television, the other presumes for documentary films a responsibility not just for the maintenance of a public sphere but also for the invention of counter publics. It acknowledges that while the content of a film is its message, the form of a film and the spaces in which it is exhibited is equally its medium. Whether in a film festival, a classroom, or for a small group of people, the screening of a film that has not been given a censor certificate is an ontological affirmation of the existence of a real image or a truth, independent of its validation by the law.
The truly powerful contribution of documentary film to freedom of speech and expression in India lies precisely in the manner in which it has reconciled these two seemingly disparate approaches. Documentary films have secured, through hard struggle, constitutional commitments from courts, thereby advancing a jurisprudence of free speech, and they have also simultaneously expanded the possible spaces of speech and inculcated an idea of free speech as practice and strategic intelligence. If Oliver Wendell Holmes, former Associate Justice of the United States Supreme Court, is right in asserting that the life of law is not logic but experience, then on that count, the legal history of documentary cinema in India has an experience of absolute constraint and absolute freedom.
Lawrence Liang is a professor at SLGC, Dr B.R. Ambedkar University Delhi. He works on the intersection of law, culture, and technology.