By Karan Thapar

I’m not writing to defend Pahlaj Nihalani. Perish the thought! But if you create an institution that has the power to censor and, then, give it guidelines to define the areas where such censorship can ‘legitimately’ occur it’s hardly surprising this power will be used – or abused. This means the fault lies as much with the system, of which he sits at the apex, as it does with Nihalani’s instincts and judgement.

The Central Board of Film Certification was set up by the Cinematograph Act of 1952. Whilst the preamble of the Act limits itself to certification of films the rest of the Act points in a very different direction. For instance, Section 4 allows the CBFC to demand “excisions” or “modifications’ before a film is certified. Section 5 allows the CBFC to deny certification if a film is considered defamatory or against “decency” and “morality”.

So even if the word censor does not occur in the Cinematograph Act, the power it confers on the CBFC permits and legitimizes censorship.

Now, you could argue the power to excise and modify or deny certification is limited to compliance with Article 19 (2) of the Constitution which permits “reasonable restrictions upon free speech”. The problem is Article 19 (2) consists of abstract phrases that not only require interpretation but could be understood in various different ways. Thus it permits restriction of free speech on grounds of “public order” “decency or morality” “defamation” and so on. And if these criteria are vague then the excisions and modifications this leads to, via the Cinematograph Act, will be arbitrary, controversial and, even, absurd.

What makes matters worse are the guidelines the government has issued to aid the Censor Board. They include the following: “dual meaning words as obviously cater to baser instincts are not allowed”; “visuals or words which promote communal, obscurantist, anti-scientific and anti-national attitude are not presented”; and “human sensibilities are not offended by vulgarity, obscenity or depravity”. This means that naughty puns can be censored. So, too, slogans Mr. Amit Shah considers anti-national. And in an age when one man’s art is another’s vulgarity, these guidelines open the door to a worrying range of acts of censorship on entirely subjective grounds of taste.

Let me, however, go one step further. Our judicial system permits judges to pronounce ex-cathedra on subjects where their expertise is limited. The authority of the chair on which they sit gives them the confidence to do so even when their opinion exhibits ignorance rather than understanding. The classic example is former Chief Justice Hidayatullah’s upholding of the ban on D. H. Lawrence’s Lady Chatterley’s Lover on the grounds it is artistically worthless, depraved and corrupting. In such circumstances courts are of limited help.

Now, if a man with Mr. Nihalani’s views is given these powers he will use them. Indeed, he will abuse them. And, of course, when that happens he is to blame. As a thinking individual he had the option of behaving differently. But the finger points beyond him. The actual responsibility lies with the system that has empowered him.

So whilst I welcome Arun Jaitley’s comment that the CBFC should certify and not censor it’s not enough. Mr. Jaitley must amend the Cinematograph Act. Until then his homily will be easily and repeatedly ignored.

A good system denies bad people the power to act improperly. A bad system gives them that power in the hope they won’t use it. Ours is a bad system.