Readers, weep for the Bombay High Court has pronounced its judgment and while Udta Punjab will be in a theatre near you, we shall never see Shahid Kapur pee on a crowd, in 70 mm with Dolby Stereo Surround Sound. Because thanks to the Cinematograph Act, the judge and the chief of the Central Board of Film Certification can decide that this kind of behaviour is simply not on.

A Division Bench of Justices SC Dharmadhikari and Shalini Phansalkar Joshi heard the plea filed by Udta Punjab’s producer Phantom Films and Vikas Bahl. The final decision was that the film will be released with one cut and some deletions. The court order says,

“Art must render obscenity so trivial that it doesn’t affect people’s minds. Holding up certificate, suggesting cuts routinely will prove counterproductive. Punjab is a land of warriors and martyrs and people must not be overly sensitive to a single dialogue that has the word kanjar…Adults won’t be tempted to use cuss words simply because they heard it in the movie. The story of Udta Punjab is depicted through fictional characters that have no connection with real life”.

The court also said that while it was an “undisputed fact that the CBFC had legal powers to suggest cuts and thus, creative freedom was not an absolute”, the CBFC could not use its powers “arbitrarily”. Although the board is empowered to make cuts, “it must remember that its job is to certify and not censor”.

“We have gone through the script of Udta Punjab and it nowhere suggests that it affects the sovereignty and integrity of the nation or the state. Easy availability and accessibility of drugs has taken a toll particularly on the youth of Punjab and the authorities are struggling to control the menace. The filmmakers have chosen to highlight this problem through the character of Tommy, a rock star, who causes his own downfall through drug abuse”.

And therein lies the rub. How do you judge what “affects the sovereignty and integrity of the nation or the state”? Or which decision is taken “arbitrarily”? If you read the entire Cinematograph Act, you will see that the decision-making process is in itself arbitrary. The vagueness of clauses, phrases and words ensures that whether a filmmaker’s film will be seen or not depends on whether the person certifying it or passing a ruling on it shares the same sensibilities as him or not. If yes, as in the judges in this case, hurrah. But if not, your film stays in the can.

So was CBFC chief Pahlaj Nihalani overstepping his limits? If you read the Act, you’ll actually see he wasn’t. It’s actually the stupid law of the land, stupid.

According to the Cinematograph Act, the government is a legitimate party when it comes to deciding what the country can or cannot see. The CBFC is a statutory body. It is also referred to under Part II as – hold your breath – Board of Films Censors. While we’ve all been getting our panties in a twist over why CBFC is censoring films, it’s because they seem to be equipped to do so.

Part II, 4 (1) of the Act says:

Any person desiring to exhibit any film shall in the prescribed manner make an application to the Board for a certificate in respect thereof, and the Board may, after examining or having the film examined in the prescribed manner,-

[(iia) sanction the film for public exhibition restricted to members of any profession or any class of persons, having regard to the nature, content and theme of the film; or]

 (iii) 4 [direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition under any of the foregoing clauses;

or] (iv) refuse to sanction the film for public exhibition.

Simply put, the CBFC has the power to decide whether or not a film can be released. And it is perfectly within its legal rights to suggest – and expect – creative changes to be made according to its whims and fancies.

Bolo mere saath, Pahlaj Nihalani ki jai!

The act also provides for pre-censorship or “prior restraint”. The CBFC has been given the responsibility of ensuring that films meet with the requirements under the Act and do not breach the “reasonable restrictions upon free speech”, which are listed under Article 19(2) of the Constitution. Article 19(2) is in itself an abstract work of art. It includes terms such as “public order”, “decency or morality” and “defamation”.

These are the principles that are supposed to guide the CBFC:

(1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of 1 [the sovereignty and integrity of India] the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.

How do you decide what can incite the commission of ANY offence? And how serious or frivolous must these offences be? If you ask me, watching Housefull 3 will make you believe that you can have a conversation with random women’s breasts. That, to me, is quite offensive. But the CBFC doesn’t have to, or seem to, agree.

For the record, I would assume that Vikram Bhatt’s moral metier while making Murder is slightly different to mine or maybe even Shirish Kunder’s. Similarly, what I consider decency may not be the same as what YoYo Honey Singh considers decent. This doesn’t mean either of us is right or wrong. It just means this is shoddy law writing. Unless of course, the government remembers 1984 (not Indira Gandhi’s 1984, but George Orwell’s) and decides to share a laundry list of what constitutes decency or morality.

In Nihalani’s defence, maybe he did feel that the word “banjar” and then “kanjar” and a signpost with “Punjab” written on it, will all combine to create a breakdown of public order and decency and morality. The CBFC guidelines allow him this prerogrative.

Also, according to the Act, the government has framed guidelines for the CBFC. If these were followed strictly, no film would ever be released in India. Take a look:

In pursuance of the above objectives, the CBFC shall ensure that

i)      anti social activities such as violence are not glorified or justified (There goes Gangs Of Wasseypur)

ii)      the modus operandi of criminals, other visuals or words likely to incite the commission of any offence are not depicted; (Ditto for Bunty and Babli)

iii)     scenes –showing involvement of children in violence as victims or perpetrators or as forced witnesses to violence, or showing children as being subjected to any form of child abuse. (Say bye-bye to Page 3 and Salaam Bombay)
showing abuse or ridicule of physically and mentally handicapped persons; and (Out damned Housefull 3)
showing cruelty to, or abuse of animals, are not presented needlessly

iv)     pointless or avoidable scenes of violence, cruelty and horror, scenes of violence primarily intended to provide entertainment and such scenes as may have the effect of de-sensitising or de-humanising people are not shown;

v)      scenes which have the effect of justifying or glorifying drinking are not shown; (Exit left, Devdas)

vi)     scenes tending to encourage, justify or glamorise drug addiction are not shown; (uh huh!)
scenes tending to encourage, justify or glamorise consumption of tobacco or smoking are not shown;

vii)    human sensibilities are not offended by vulgarity, obscenity or depravity; (RIP all Sajid Khan and Sajid Nadiadwala films)

viii)   such dual meaning words as obviously cater to baser instincts are not allowed; (Tusshar Kapoor, kiss your filmography goodbye)

ix)     scenes degrading or denigrating women in any manner are not presented; (all of Pahlaj Nihalani’s films, chucked)

x)      scenes involving sexual violence against women like attempt to rape, rape or any form of molestation or scenes of a similar nature are avoided, and if any such incidence is germane to the theme, they shall be reduced to the minimum and no details are shown (Bandit Queen, Damini and virtually every other release between 1980 and 1995)

xi)     scenes showing sexual perversions shall be avoided and if such matters are germane to the theme they shall be reduced to the minimum and no details are shown (Out goes Badlapur)

xii)     visuals or words contemptuous of racial, religious or other groups are not presented (That takes care of Kya Kool Hai Hum, Housefull)

xiii)    visuals or words which promote communal, obscurantist, anti-scientific and anti-national attitude are not presented (I’ve given up now)

xiv)    the sovereignty and integrity of India is not called in question;

xv)     the security of the State is not jeopardized or endangered

xvi)    friendly relations with foreign States are not strained;

xvii)   public order is not endangered

xviii)  visuals or words involving defamation of an individual or a body of individuals, or contempt of court are not presented

According to these guidelines, we probably can’t even watch My Little Pony, because it would be showing needless cruelty to animals. No wonder Nihalani and gang claimed we were going to be laid asunder by the sight of a side portion of a Sardar being scratched in Udta Punjab.

The Act is a study in vagueness and ridiculous moral gatekeeping. It’s open to interpretation, representation and implementation by whoever is ruling the roost at CBFC, or by whichever judge is hearing an appeal in court. The Udta Punjab producers are simply lucky that the film had public backing and the judge agreed with this point of view. Had the film been on a more contentious and divisive subject — like, for instance, the Azadi movement in Kashmir — would the court have been as supportive? The judgment in favour of Udta Punjab’s release is not a triumph for freedom of expression, particularly since it has a cut and modifications that the court (not the filmmaker) deemed necessary.

The fact that the Cinematograph Act hasn’t been amended since 1983 – which was over three decades ago – makes it amply clear how dated it is. While we’ve been saved from Shahid Kapoor’s peeing penis, the question is, who will save us from the arbitrariness of the Cinematograph Act of 1952?

The author can be reached on twitter @rajyasree