could be made Since then, the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code Rules, 2021 have come into force, extending the regime of prio r restraint which already applied to movies and books todigital content.

The Ministry”s actions are clear indication of the State”s acceptance of the “heckler”s veto” in the regulation of speech in India The doctrine of heckler”s vetostates that the State shouldprevent speech or expression when individuals andgroups commit or threaten to commit acts of violence or disruptionagainst suchspeech or expression The State, bysuccumbing to the heckler”s veto, suppresses thespeech or expression that ispotentially disruptive rather than protecting those whosecontroversial speech is under threatfromhecklers and disruptors.

This chapter explores the regulation on books and movies against thebackground of constitutional guarantees of free speech and the reality ofcensorship of both these mediumsI acknowledge that the courts are only one sitefor the contestations over speech and expression As the example of⁵ I examine theincreasing aggrandisement of such groups and the executive, especially lawenforcement agencies, and their role in regulating which films and books can reachthe open marketI also examine how far the heckler”s veto has become a part of theregulation of films and books despite constitutional protections and theconsequences thereof However, this chapter does not analyse ingeneral thejudicial interpretations of obscenity in books and films.

The first section of the chapter describes the constitutional protections for freespeech in India and the impact of the first amendment to the Constitution-.. Thesecondsection analyses the regulation of films through the Central Board of Film Certification (CBFC and executive orders The third section examines theregulation of books through executive orders.

Tandav demonstrates, in the present era, such co ntestations have spilled onto the streets and in the unregulated alleys of the internet, where the threat ofviolence and actual violence are being used to limit free speech The legal sovereignty of the State is increasingly being challenged by competing repertoires of authority and violence anchored in communities and loca lities—local “big men”, pressure groups, religious, and caste organisations, or organisations of activists.

Constitutional Protection of Free Speech

In India, the freedom of speech and expression is guaranteed to citizens as a fundamental right in the originaldraft of the Constitution, Article 19(1a gave allcitizensof India the right to free speech restricted by Article 19(2 which enabled the State to make laws relating to “libel, slander, defamation, contempt of court”, “anymatter which offends againstdecency or morality”, and permitted laws restricting anyspeechwhich either undermined the securityofthe State or had the tendencytooverthrow the State.

Sedition, public order, and hate speech were deliberately notlisted as exceptions to Article 19(1a.

The debates in the Constituent Assemblyreveal that the notion that the fundamentalrights were guaranteesto be upheld evenwhen it was inexpedient, formed a clear dividing line between colonial andindependent India.

The original Article of the Constitution would have mostlikelyled to the repeal of Sections 124A, 153, 153A, 295, 295A, 499, 500, and 505 of IPC, since “public mischief”, “outraging religiou’s feelings”, “wantonlygiving provocation”, “defaming reputations”, etcdo not constitute a threatto the State itself.

This progressive regime did not last even two years In June 1951, the Constituent Assembly (then a unicameral, provisional Parliament for Indiaintroduced the first amendment to the Constitution, which amended Article 19(2 to include three new enumerated restrictions on the right to free speechTheimmediate impetus for the amendment came from two Supreme Court judgmentsfrom March 1950, which had struck down “Public Safety” Acts in Madras and East Punjab on the grounds that they violated the fundamental right to freedom ofspeech and expression.

The first amendment to the Constitution permitted the State tomake lawsimposing reasonable restrictions in the interests of “public order”, “friendly relationswith foreign states”, and “incitement to anoffence”.

The Statement of Objects and Reasons to the Bill introducing the first amendment stated, The citizen”s right to freedom of speech andexpression guaranteed by Article 19(1a has been held by some courts to be so comprehensive as not to render a personculpable even if he advocates murder and other crimes of violence In other countrieswith written constitutions, freedom of speech and of the press is not regarded asdebarring the State from punishing orpreventing abuse of this freedom.

This amendment had wideranging implications It rehabilitated and saved fromrepealing various colonial laws suppressing speech and expression, which the Constitution had tried to remove or supersede The expansive wording of the newexceptionsin Article 19(2 gave the State much leeway in suppressing dissent andcriticism and reduced the scope for courts to protect it.

It set the stage for theoverwhelming concern for law and order togovern the legal regulationof speech anddetermine the contours of free speech rightsin the country, the effect of which weobserve even today Thisis especiallyevident in the regulation of books and films.

Once the threat of a disruption of public order is given legal sanction as a reason tosuppress free speech, it becomes easy for individuals and groups to threaten violenceevery time a work of creative expressionoffends their sensibilities As a consequence, on multiple occasions, the State has given in to demands of censorship every timethere are threats of disruption of public order This method of vigilante censorshipbecomes a convenientextraconstitutional method to curb the extent of the “marketplace of ideas”. Apart from permitting a regime ofcensorship of creativeendeavour, artistic work, criticism ofreligion, a challenge to social orthodoxy, andsatire, it also leads to selfcensorship where creators themselves avoid creating worksdealing with “sensitive topics.”. Instead of the State taking on the burden to ensure anatmosphere where everyone can speak, the burden ison speakers and creators toensure that their audience and potential viewers are not offended enough to disruptpublic order or be incited to commit offences.

In terms of creative mediums, films are subject to the strictest regulations sincethey cannot be released without a certificate from the CBFC Books are not subjectto such censorship but there still exists a prior restraint regime under the Code of Criminal Procedure,. 1973 (hereinafter. “CrP C” for themIn contrast, the press hasmore freedom, although in recent times gag orders have been issued against them.

The category of speech with the most protection is what is said in Parliament orstate legislatures In PV. Narasimha Rao vState, all five judges were in agreement on the point that the freedomof speechthat isavailable to members of Parliament

Regulation of Films

Parliamentary privilegesare also available to nonmembers of a House who are under the Constitutionentitled to speak and take part in the proceedings of a House or any of itscommittees, that is, Ministers and the AttorneyGeneral.

The freedom of speechguaranteed as parliamentary privilege is constrained by Article 121 which states thatno discussion can take place in any House with respect to the conduct of a Supreme Court or a High Court Judge in the discharge of his duties except when a motionfor his removal is under consideration.

Statutory Framework Regulation of Speech and Expression in Indiaƒ The Cinematograph Act, 1952 governs the ce rtification and censorship of films in independent India The Act established the Central Board of Film Censorship of India, a body in charge of these processes The Board was later renamed the Central Board of Film Certification (CBFC The CBFC comprises a Chairperson and members appointed by the Union Government The Cinematograph (Certification Rule’s, 1983 detail the procedure for film certificationA film submitted for certification isfirst viewed by an Examining Committee whose composition is determined by the Regional Officer appointed by the Union Government The Examining Committee may certify a filmas either “U” (unrestricted viewing, “UA” parental guidance for children under 12, “A.” (restricted to adults, or “S” (restricted to special audiences The Act empowers the Examining Committee to ask for cuts ina film or even deny a film a certificate altogetherSection 5B of the Cinematograph Act, 1952 lists the expansive grounds on which films may be denied certification These grounds mirror the permissible grounds for restricting speech under Arti cle 19(2 of the Constitution Another notification issued in 1991 provided that the objectives of film certification are:

80 5. as far as possible, the filmis of aesthetic value and cinematically of a goodstandard.

The notification also listed 19 guidelines for the CBFC to ensure compliance in the films they were certifying These include overbroad guidelines, such ashumansensibilities not being offended by vulgarit y, obscenity, or depravity, antisocialactivities such as violence not being glorified or justified, and a prohibition of dualmeaning words as obviously catering to baser instincts Apart from the Cinematograph Act, 1952, various states have legislations giving the executivesweeping prior restraint powers These legislations empower the State Governmentto suspend the exhibition ofa film if, in their opinion, the exhibition of the filmmay cause a breach of public order.

Objectionsto films often arise despite the film being certified for release by the CBFC, as in the case of Judicial Interpretation Given the broad wording of the CBFC”s guidelinesand the powers given to the executive toban films, it isnot surprising that the Supreme Court and the High Courts have been calledto resolve several disputes over the exhibition of films In KA. Abbas vUnion of India, the maker of a documentary titled A Tale of Four Cities applied for a “U” certificate but was instead granted an “A” certificate by the CBFC On appeal, the CBFC agreed to grant a “U ” certificate to the movie provided thatcertain changes and cuts in some scenes were incorporated The documentary maker approachedthe Supreme Court challenging the certification process and the process of censorship of films itself The Suprem e Court”s judgement upheldcensorship in India and heldthatitwas not a violation of Article 19(1aThe Court also held that the classification according to the age groups was a valid exercise ofpower in the interest of public morality and decency The Court justified the treatment of films differently fromart and books by stating that a person reading a book or other writing or hearing a speech, or viewing a painting or sculpture is not as deeply stirred as byseeing a motionpicture Ramesh vUnion of India The petitioner in this case moved the Supreme Court under Article 32 demanding a prohibition of the televisionscreening of the serial Tamas The petitioner alleged that the exhibition of the said televisionserial was against public order and likely to incite people to indulge in the commission of offences and was therefor e violative of Section 5B(1 of the Cinematograph Act, 1952. He also alleged that it was likely to promote feelings of

The cases discussed above involved laying down limits on State actions incertifying films and banning themA more thorny issue is how the State should actwhen it controls the means of dissemination The Supreme Court dealt withtheissue of the upholding of the freedom of speech and expression bypublic enterprisesin the case ofIn Regulation of Speech and Expression in Indiaƒ Life Insurance Corporation vProf Manubhai DShah The case involved two incidents, the first was the re fusal of a magazine run by Life Insurance Corporation to publish the rejoinder of the author of an academic paper criticising the Life Insurance Corporation of India”s schemes toa reply to his paper published in the same magazine The secondincident involved a documentary film on the Bhopal Gas Tragedy, a case concerning the leak of lethal gases from a Union Carbide factory in Bhopal and the liability of Union Carbide for the deaths caused Doordarshan, the national television channel, refused to air the documentary because it was critical for the government in power during the incident The Court rejected this stance and held that the sc reening of a documentary cannot be denied merely because it is critical of the go vernmentThe Court held that freedom of expression includes not just the freedom to circulate one”s views but also the right to defend them In recognising this right, it placed a greater burden on publications made using public money It also placed a high burden on the rejection of content by governmentcontrolled media by requir ing them toprovide reasoned decisions that are valid in law Director General, Doordarshan vAnand Patwardhan, the Supreme Court was presented withfacts similar to those in Life Insurance Corporation and Ramesh In this particular case, the respondent challenged Doordarshan”s refusal to screen Part

82 1 of his documentary,In the case ofSimilar to Father, Son and Holy War even though the documentary had received a “U” certificate from the CBFC The Court held that Doordarshan, being a Statecontrolled agency funded by pu blic funds, could not refuse to screen the documentary except on specified vali d grounds The Court found that this film did not violate any constitutional provision, nor was it likely to create any law and order problems as Doordarshan feared It fell well within the limits prescribed by the Constitution and did not appeal to the prurient interests of an average person Applying contemporary community standards while taking the work as a whole, the work was held to be not patently offensive and without the power to deprave and corrupt any average Indian citizen”s mind No apprehension of an impact on public order or the likelihoodof incitement to the commission of an offence was made out Bobby International vOm Pal Singh Hoon, the screening of the film Bandit Queen, about the life of Phoolan Devi, with its scenes of frontal nudity and rape, was challenged Rejecting a challe nge to the film”s screening, the Court held that “the object of doing so was not to titillate the cinemagoer”s lust but to arouse in him sympathy for the victim and disgust for the perpetrators”. The Court allowed the film to be screened with an-. “A” certificate, holding that the scenes featuring nudity and expletives served the purpose of telling the important story and that the producers” right to freedom of expression could not be restricted simply because of the content of the scenes The Court statedthat “a film illustrating the consequences of social evils must necessarily show that social evil”, and that “a filmthat carries the message that the social evil is evil cannot be made impermissible on the ground that it depicts the social evil”. Ramesh discussed above, in this case too, the Court examinedthe work as a whole and refused to ban it since the objectionable scenes fulfilled a purpose in conveying the larger social message of the film Heckler”s Veto In SRangarajan vP. Jagjivan Ram, the Supreme Court was confrontedwitha situation of the State arguing in favour of the heckler”s veto The revocation ofa Ucertificate to a Tamil filmcalled Ore Oru Gramathile, a satirical take on caste and affirmative action was challenged before the Court in this case The State of Tamil Nadu argued that various associations and pa rties had threatened violence if the film was screened and that the exhibition of the filmwould create a severe law and order problem in the state The Court rejectedth is argument and asked what good is the

The Court heldfurther that if a movie cannot be restricted under any of the groundsin Article 19(2, it has to be certified and then released The Court made it clear that the CBFC should apply the standard of an ordinary man of common sense and prudenceand not that of an out…oftheordinary or hypersensitive man while judging a film.

The case ofconcerned a “shadow ban” on the Bengali film, The police are not in a free society the selfappointed guardians of public morality.

The uniformed authority of their force issubject to the rule of law They cannotarrogate to themselves the authority to bewilling allies in the suppression of dissentand obstruction of speech and expression.

The Court came downharshly on the “shadow ban” of the film-., which was notunder any provision of law, The danger which this case exemplifies is the peril of subjecting the freedom of speechand expression of the citizen to actions which are not contemplated by the statute andlie beyond the lawful exercise of public power All exercises of authority in pursuanceof enabling statutory provisions are amenableto statutory remedies and are subject tojudicial oversight under a regime of constitutional remedies The exercise of statutoryauthority is not uncontrolled in a regime basedon the rule of law But what do citizenswho have a legitimate right to exhibit a filmconfront when they are told that a film Regulation of Speech and Expression in Indiaƒ Indibility Creative Private Limited vGovtof West Bengal 22 Bhobishyoter Bhoot (Ghosts of the Future, a political satire, which was certified “U/A” by the CBFC for public exhibition The Court had to examine a situation of heckler”s veto in this case, similar to Rangarajan While there was no legal ban, the petitioners stated that the state had misuse d police powers and obstructedthe film-.”sscreening The Special Intelligence Unitof the state demanded a private screening of the movie before its release since they believed that the movie might hurt public sentiments and lead to law and order issues The petitioner refused to comply withthe request, and, inrespon se, the Special Intelligence Unit informally directedmovie theatres not to screen the movie Several movie theatrescomplied with this request The Court expressed its disapproval of the actions of the Special Intelligence Unit, stating,

The Court pointed out that by making anexample out of the producers and theactors, there had been an attempt to silence criticism and critique The Court wasprescient inits observation that “contemporary events revealthat there is a growingintolerance: intolerance which isunacceptin g of the rights of others in society tofreely espouse their views and to portray them in print, in the theatre or in thecelluloid media”.

One of the mostcontroversialfilms in the recent past wasThe matter reached the Supreme Court in The State Government in respect of the whole or any part of the State of Rajasthanand the District Magistrate in respect of the district within his jurisdiction may, if it orhe is of opinion that any film which is beingpublicly exhibited is likely to cause breachof the peace, by order suspend the exhibitionof such film and during such suspension, the film shall be deemed to be an uncertifiedfilm in such whole, part or district of the State of Rajasthan.

The producers of the filmchallenged the ban before the Supreme Court The Court clarified that this Section does not permit prior restraint of a film that is yet Padmavat (originally, Padmavati The film courted controversy from the time itwas being shot The film was set in the Kingdom of Chittor in modernday Rajasthan and revolved around Allauddin Khilji, the Sultan of Delhi”s fascination for the queen of Chittor, Padmini, and his attack on the kingdom to capture her Protesters first wrecked sets of the film in two citiesA Rajput organisation, the Karni Sena, thenclaimed that the film was distorting history and tarnishing the legacy of their queen Padmini (who se historical existence is very much in doubt BJP”s Sura jpal Amu offered a bounty of Rs. 10 crores for beheading Deepika Padukone, one of the lead actors in the film Interestingly, these protests and threats precededthe film-.”s release, and so none of the offended parties had actuallywatched the film-.. Viacom 18 vUnion ofIndia Though the CBFC had given the film an “U/A” certification, the Government of Rajasthan banned the movie under the Rajasthan Cinemas (Regulation Act, 1952, fearing that it may hurt the religious sentiments of the people and create a lawandorder situation in the state The movie was banned under Section 7(1 of this Act which is as follows:

Regulation of Books

The legal regime governing the release of a film for public viewing not onlyinvolves wideranging powers in the hands of the CBFC to censor but is alsoplagued with uncertainty The creation of a body like the CBFC, even with all itsflaws, should have provided a sense of certainty Unfortunately, it does not becausestate governments still can ban films after the CBFC clears them for release Stategovernments are usually enforcing a heckler” s vetothrough such prior restraintsIt has become easy for religious and caste groups to commit acts of violence or threatento do and coerce state governments into banning films that hurt their sentiments.

This legal regime incentivises violencerather than offering any protection forfilmmakers Although courts have upheld the freedom of expression of filmmakersin several instances, it has been after theywere subject to threats and destruction ofproperty from the perspective of a filmmaker, it is preferable to selfcensor ratherthan subject oneself to the rigmarole of the legal process.

Statutory Framework Regulation of Speech and Expression in Indiaƒ Books are not regulated by a body like the CBFC but are still subject to a prior restraint regime Section 95 of the Code of Criminal Procedure,-. 1973 (similar to Section 99Aof the Code ofCriminal Procedure, 1898 gives the state government the power to order forfeiture of a book if it appears tosuch state government tocontain any matter the publication of which is punishable under Section 124A (sedition or Section 153A (promoting enmi ty between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony or Section 153B (imputations, assertions prejudicial to nationalintegration or Section 292 (sale,-. etc., of obscene books, etcor Section 293 (sale,-. etc., of obscene objects to youn g persons or Section 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its

The Court said that this pronouncement of the Supreme Court applies equally to Section 99A of the Code of Criminal Procedure,-. 1898 since only a matterthatwould fall either within the ambit of Sections 295A, 124A, or 153A of the IPC would enable the government to take action under Section 99AThe High Courtsaid thatin considering whether Section 99 A imposes a reasonable restriction, it hasto be remembered that Section 99D contains a provision for judicial remedy On the book itself, the Court declared that Article 19(1a does not give the freedom tomake scurrilous attacks on the religion and religious beliefs of other sects with impunity.

In Judicial Interpretation of the Provisions on Book Bans In the Andhra Pradesh High Court”s judgment in NVeerabrahmam vState of Andhra Pradesh, the subject before the Court was the Andhra Pradesh Government”s forfeiture of copies of Veerabrahmam”s book Bible Bandaram (Treasure of the Bible under Section 99A of the Code of Cr iminal Procedure, 1898. The author challenged the government”s ac tion claiming that he had dealt with the Bible from a scientific and rationalist point of view The petitioner also challenged the constitutionality of Section 99A of the Code of Criminal Procedure,. 1898. The Court observed that the first amendment to the Constitutionhad expanded the scope of Section 19(2 to include “in the inte rests of public order”. The expression “in the interests of” is of wide connotation., and therefore any law penalising activities that have a tendency to cause public disorder is within the scope of authorised limits The High Court followed the Supreme Court decisionin Ramji Lal Modi vState of Uttar Pradesh, where the latterrejected a challenge to Section 295A of the IPC asunconstitutional The Section was declared constitutional because it “punishes an aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class”. Harnam Das vState of Uttar Pradesh, two books written by the appellantwere forfeited under Section 99A of the CrPC on the grounds that the said books contained matter the publication of which was punishable under Sections 153A and 295A of the IPC The order did not, howeve r, state the grounds for that opinion The order did not specify which communitie’s were alienated from each other or whose religious beliefs had been wounded, nor did it explain why the government thought that such alienationor offence toreligion had been caused The Supreme

Court, while setting aside the Governmentof Uttar Pradesh”s forfeiture order, madeit clear that, Two things appear clearly from the terms ofthis Section The first thing is that anorder under it can bemade only when the government forms a certain opinion Thatopinion is that the document concerning which the order is proposed to be made, contains “any matter the publication of which is punishable under Section 124-A or Section 153-A or Section 295-A of the Penal Code”. Section 124-A deals withseditious matters, Section 153-A with matters promoting enmity between differentclasses of Indian citizens and Section 295- A with matters insulting the religion orreligious beliefs of any class of such citizens The other thing that appears from the Section is that the government has to state the grounds of its opinion.

In The compulsions of history and geography and the assault of modern science on theretreating forces of medievalways—a mosaic liketapestry of lovely and unlovelystrands—have made large and liberal tolerance of mutual criticism, even thoughexpressed in intemperate diction, a necessity of life Governments, weare confident, willnot act in hubris, but will weigh these hard facts of our society while putting intooperation the harsh directives for forfeiture From Galileo and Darwin, Thoreau and Ruskin to Karl Marx, HG. Wells, Bernar d Shaw and Bertrand Russell, many greatthinkers have been objected to for thei r thoughts and statements—avoiding for a moment great Indians from Manu to Nehru.

Even today, here and there, diehards maybe found in our country who are offended bytheir writings but no government will beantediluvian enough to invoke the power toseize their great writings because a fewfanaticshold obdurate views on them.

In Regulation of Speech and Expression in Indiaƒ State of Uttar Pradesh vLalai Singh Yadav, the Supreme Court had to decide on the Governmentof Uttar Pradesh”s or der under Section 99A of the Code of Criminal Procedure, 1898 forfeiting copies of a book entitled Ramayan: A True Reading, by Periyar EV.RQuashing the ban order, the Court held that different persons may have different reactions to the same work and that the rule of human advance is free thought and expression, but the survival of society enjoins reasonable curbs where public interest calls for itThe balance between these interests isstruck by governmental wisdom overseen by ju dicial review The Court pointed out, Gopal Vinayak Godse vUnion of India, the Bombay High Court set aside the order forfeiting a book called Gandhihatya Ani Mee (Gandhiassassination and I by Gopal Vinayak Godse, and laid down the following ingredients to make out an offence under Section 153A of the IPC:

88 2. Intention to promote enmity or hatred, apart from what appears from thewriting itself, is not a necessary ingredient of the offence It isenough toshow that the language of the writingis of a nature calculated to promotefeelings of enmity or hatred for a person must be presumed to intend thenatural consequences of his act.

Applying these criteria, the Court held that the offending passages inGandhihatya Ani Mee mentioned in the order of forfeiture cannot be read in isolation They should be read in the context of the book as a whole and when read in such a manner the Court opined that the book di d not promote feelings of enmity and hatred between Hindus and Muslims in India Special Categories of Offence The Supreme Court has reversedsome of the gains made in previous judgements by creating higher thresholds for certain communities and historical figures, although such hierarchies have not been providedfor in the statutes themselves Baragur Ramachandrappa vState of Karnataka is the first such example that marked a diversion from the previous pronouncements on how to determine if a book falls within the Sections mentioned in Section 95 of the Code of Criminal Procedure In this case, the Supreme Court examined the validity of an order by the Governmentof Karnataka forfeiting all copies of a book called Dharmakaarana under Section 95 of the CrPC for offending the sentiments of followers of the Veerashaiva sect It was held by the Cour t that “India is a country with vast disparities inlanguage, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted”. The Court, by stating that “what may be a laughable allegation to a progressive people could appear as sheer

The author apologised for theoffending statements in the book and said that he only was responsible for theoffending statement written in the book, and the publisher was not at all responsiblefor the same An FIR was filed against the author, publisher, and printer under Sections 153, 153A, and 34 of the IPC, following which the printer was arrested.

Soon after that., the Maharashtra government banned the book under Section 95 of the Code ofCriminal Procedure They claimed that the book was likely to breachpeace and public tranquillity, particularly between those who revere Shri Chhatrapati Shivaji Maharaj and those wh o may not The ban was challenged andstruck down by the Bombay High Court The government appealed The Maharashtra Government used the ransacking of the Bhandarkar Institute asevidence.

Interestingly, in 2017 a Sessions Court in Pune acquitted 68 persons associatedwith Maratha outfit Sambhaji Brigadeand accused of ransacking Bhandarkar Oriental Research Institute stating that the prosecution had failed to establish therole of these 68 people in the incident-..

Three years after the FIR was filed againstthe author, publisher, and printer, the Su preme Court quashed it, stating that nooffence had been made out The Court emphasised the needto examine the book as a whole and not “rely on strongly worded and isolated passages for proving thecharge nor indeed can one take a sentence here and a sentence there and connectthem by a meticulous process of inferential reasoning”. The Court made itclear thatit is the sole responsibility of the State to make positive efforts to resolve every² of the fact that the book created feelings of enmity between classes It was also argued that if a book caused enmity between classes, it could not be protected under Article 19(1a even if it contained historical truth Ultimately, the Court upheldthe Bombay High Court”s decision on the narrow, procedural ground that the Government ”s order did not specify the classes or communities between which enmity had been created It added that the perspective from which the book ought to be judged must be that of “the standards of reasonable, strongminded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view”

Conclusion

Section 95 of the Code ofCriminal Procedure gives the executive sweepingpowers of prior restraint In interpreting Section 95 (formerly Section 99A of the Code of Criminal Procedure,-. 1898, courts have tried to curb these powers byinsisting that the order of forfeiture be specificabout which communities will behurt by the work and how However, thewording of subsections under Section 95 is quite ambiguous, leaving much scope forexecutive overreach For example, it isstill unclear what characteristics a group must possess to be classified as a class whosereligious feelings have been outraged under Section 295A of the IPC Does such a group need to represent the sect/caste or the entire religion? If a minority within a sect or caste feels outraged, does the executive have the power to ban the book?

Similarly, under Section 153A, it is not clea r how groups are defined to determine ifthe book is promoting enmity between them.

Additionally, courts have interpreted Section 95A in a way that the stategovernments do not have to demonstrate actual disruption of public order; anapprehension of such disruption in their minds issufficient The burden ofdisproving thisapprehensionthus shiftstothe creator of the work.

The legal regime governing the regulation of books and films reflects the uneasycompromise between the right of speech and expression guaranteed in Article 19(1a and the restrictions on this right in Article 19(2. In terms of judicial Regulation of Speech and Expression in Indiaƒ Lalai Singh had set a high standard for the executive authorities while deciding if the work hurt sentiments or not Baragur Ramachandrappa has considerably watered it down by giving room for any group, especially a marg inalised group, to claim hurt sentiments and get a book banned The scope for the executive to ban books may expand further if the reasoning in the Supreme Court”s 2015 judgment in Devidas Tuljapurkar is used with respect to Section 95 cases aswell This particular judgment carved out a category of “historically respectable pers ons” and created a lower bar for judging obscenity for works about such persons in the context of Section 292 of the IPC Thus, a text that may not be ordinarily considered obscene may be considered obscene if it refers to a “historically respectable persons”.

The legal regimecombined with the absence of a clear judicial stand has over the years created a marketplace ofhurt rather than a marketplace of ideas While the constitutionalguarantee to free speech is assumed to be clearcut, the “public order” and “incitement to commit an offence” exceptions created in Article 19(2 and thelegislation based on them have muddied the waters considerably Significant leewayhas been given to the executive to identifyhurt sentiments of various groups and todetermine if there is a threatto public order.

The mostpowerful weaponin the hands of the executive inthis regard is thepower of prior restraint The regime of prior restraint which bans the book or filmeven before it is released in the public domainhas in effect made hurt anentitlement Such a regime is problematic because the initial censorship decision ismade by an administrative body in nonjudicial proceedings without hearing theauthor or the filmmaker Gautam Bhatia has pointed out that when the materialinvolved is critical of the government, or offensive to a group that is politicallysensitive for the government, it is likely that the governmentwill overestimate thenature of the threat, and err on the sideof censoring or banning The burden thenshifts to the author or the filmmaker toapproach a court to have the decisionoverturned Even if the court overturns the executive ban, the process involvesconsiderable time and money apart from the anxiety of dealing with threats ofviolence In the case of postpublication censorship, the material has at least enteredthe public domain and its effect can be seen rather than imaginedA regime of priorrestraint ensures thatcertain ideas never reach the “marketplace”.

What is apparent from the analysisof case law in this chapter is that hurt andoffence to religion and caste are the most commonly contested categories Withrespect to books, the law itself privilegesinsult to religion above sentiments aboutother belief systems through Section 295A of the IPC This gives people whobelieve in any religion the right to ask for a ban on a book offending their religiousbeliefs Similar privileges are not accordedto believers of any other belief system orphilosophy.

These legal regimes can be seen as part of a broader tendency to confrontproblems of multicommunity, multireligious democracy through censorship In contrast to the colonial government.”sobvious efforts to control nationalistambitions, the efforts in independent India are couched as being fuelled bya desireto represent byanticipating hurt feelings and speaking for the “public interest.”.

An unfortunate consequence is that the controversies surrounding films and books arenow no longer about the work itself., they have become about the creators as well.

There is an increasing trend of “hurt” groups demanding not only a ban on the bookor film but also criminal proceedingsagainst their creators Such groups areemboldened by the fact that offences relating to speechare criminalised under the IPC and are cognisable Thus, creators can bearrested without a warrant Even if thecreator is ultimately acquitted by a court of law, the prospects of pretrialincarceration and a prolonged trial are sufficient disincentive to not put out materialthat could be perceived as offensive to any group The inevitable consequences ofthese developmentswill be a chilling effect on future expression and selfcensorshipby authors and filmmakers.

In the long run, in response to the looming spectre of vigilante violence andcriminal prosecution against offensive material, publishers, streaming platforms, andmovie theatres will become gatekeepers over what reaches the public domain andwhat does not SuchIt is likely thatsuch gatekeepers will keep a wide margin of error while judging the material in orderto protect themselves Ultimately, there will be a chilling effect on creativeexpression, severely limiting the ideas that reach the marketplace and the quality ofpublic debate.

— Regulation of Speech and Expression in Indiaƒ gatekeepers, as private parties, are not accountable to citizensfor their decisions Their decisions will be taken in private and will not be open to judicial scrutiny An example of this was the publisher Penguin”sdecisionto pulp Wendy Doniger”s book in response to pressure from Hindu groups.