CENSORSHIP OF THE FILM "HAAL" AND LEGAL ISSUES

CENSORSHIP OF THE FILM "HAAL" AND LEGAL ISSUES 

BY :

SALIL KUMAR.P

ADVOCATE

KOZHIKODE -673001

Cinematograph Act, 1952, Section 5B of the Act lays down “principles for guidance in certifying films”:

“(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 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.” .

Thus the statutory regime explicitly recognises that films may be restricted on grounds of decency or morality, public order, incitement to offence, etc.

The Act further empowers the certifying authorities (via the Central Board of Film Certification or regional boards) to require excisions/modifications before certification (see Sections 5B(2) and 5C). 

Constitution of India — Articles 19(1)(a) and 19(2)

Article 19(1)(a) guarantees the freedom of speech and expression.

Article 19(2) provides that this right is subject to reasonable restrictions in the interests of, inter alia, the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, or incitement to an offence.

Consequently, the legal regime for film‐certification must align with these constitutional bounds. The KHC in the Haal matter referred to exactly this interplay: restrictions must fall under the grounds enumerated in Article 19(2).

Test of “incitement to violence or offence”

A subset of the “public order” ground under Article 19(2) deals with materials which may incite violence, communal disharmony, hatred, etc. Indian jurisprudence has held that the state cannot suppress speech merely because some might react with violence (the “heckler’s veto” doctrine) — rather there must be a proximate connection between the speech and the danger of public order or offence. See e.g. S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574. 

Standard of decency/morality/obscenity

In the context of content alleged to be indecent or immoral, Indian courts have developed tests for obscenity, sex, indecency etc. One key standard is laid down in Aveek Sarkar v. State of West Bengal (2014) 4 SCC 257 — the Supreme Court rejected the old Hicklin test of obscenity and adopted a “community standards” test, i.e., the test of what would be acceptable to an average person rather than to a hypersensitive minority. 

Application in the Haal case and relevant jurisprudence

Facts as reported

In the Haal matter, the KHC (Justice V. G. Arun) observed that a scene depicting a Christian girl wearing a Muslim attire (burqa/abayah) in a dance sequence “cannot be termed as indecent, immoral or capable of inciting violence.”

The film makers challenged the excisions / modifications suggested by CBFC. The KHC set aside many of the CBFC’s modifications, noting that the board had approached the film through an overly cautious lens and not as an ordinary viewer would. The Indian Express+1

KHC’s reasoning

The KHC emphasised that the state’s power to restrict the film’s exhibition is confined to the grounds under Article 19(2) (decency/morality/public order etc). The Indian Express+1

The court said that the impugned sequence in Haal did not cross the threshold of “incitement to violence or offence,” nor did it amount to indecency or immorality when viewed in context.

The court further held that allegations of religious offence (Christian vs Muslim attire sequence) required a careful balancing of artistic freedom (Article 19(1)(a)) and the prescribed restrictions — and that mere possibility of causing offence to a small religious group is not sufficient to restrict the film.

The KHC pointed to established precedent that a film must be judged by “an ordinary prudent viewer” and not by an ultra-sensitive or hypersensitive standard. The Indian Express+1

Relevant precedents

K. A. Abbas v. Union of India (1970) 2 SCC 780

The Supreme Court recognised that films are a legitimate medium of expression under Article 19(1)(a). The certifying authority cannot act arbitrarily. The Act’s Section 5B criteria (as above) were explained. 

The Court held that film censorship should not be used merely to placate “oversensitive” sections of society.

Anand Patwardhan v. Union of India (2006) 8 SCC 433

Although a documentary, the Court held that freedom to convey perception through film is protected and the state cannot deny exhibition merely because some sections may find it objectionable. 

It emphasised the need to evaluate the film in its entirety, and whether it has redeeming social/artistic value.

Aveek Sarkar v. State of West Bengal (2014)

As noted above, the Court clarified that sex, nudity or depiction of attire per se does not make content obscene or indecent. Judgment emphasises contemporary community standards, context, and effect on viewer. Law Web

Ramesh S/O Chotalal Dalal v. Union of India (1988) 2 SCC 217

Dealing with film certification, the Supreme Court held that mere possibility of demonstration or violence cannot be ground for prior restraint unless there is a clear and present danger to public order. Utkal University

How the present observation aligns

The Haal decision mirrors the principle that mere depiction of a Christian girl in Muslim attire does not automatically equate to indecency, immorality or incitement. The KHC rightly directs that the scene must be evaluated in context, in entirety, and from the viewpoint of an ordinary viewer.

The court’s approach is undoubtedly consistent with the precedents: artistic freedom is protected; restrictions must fall within Article 19(2) grounds; the effect on public order must be proximate; decency/morality standards cannot be governed by hypersensitivity.

The decision underscores the balancing act between the certifying authority and the right to free expression of filmmakers. The KHC has reminded CBFC that the test is not whether some might be offended, but whether the film transgresses statutory/constitutional thresholds of decency, morality or incitement.

Points to watch / implications for practice

For filmmakers (and counsel advising them): The Haal ruling reinforces that certification challenges can succeed if the objections raised by CBFC are not grounded in one of the enumerated Article 19(2) grounds or if the effect is speculative. The “ordinary viewer” standard is key.

For certifying authorities: The decision is a caution against over-sensitive application of guidelines. The authority must articulate the specific ground (e.g., incitement to violence, threat to public order, gross obscenity beyond community standards) rather than generic moral disapproval.

For litigators: This case may be cited in future film certification disputes in Kerala (and possibly elsewhere) to argue that dress, attire attempts or depiction of cross-clothing, or scenes involving religious minorities, do not per se warrant cuts unless there is substantive evidence of harm or offence per the statutory/constitutional test.

For screening policy: The KHC’s remark that CBFC had not viewed the film from the vantage point of an ordinary person but rather of an “oversensitive” respondent is instructive — in future certification decisions, the spectator standard may become more explicitly articulated in affidavits/objections.

For religion/communal sensitivity concerns: While films dealing with religious or inter-faith themes often trigger objections, the ruling emphasises that the existence of sensitivity alone does not permit pre-emptive censorship — the key question remains whether the film threatens public order or transgresses decency/morality standards in a way recognised by law.

Conclusion

The Kerala High Court’s observation in the Haal case is grounded in a sound legal framework: statutory provision (Cinematograph Act 1952: Section 5B), constitutional protections (Articles 19(1)(a) & 19(2)), and established Supreme Court jurisprudence (e.g., K.A. Abbas, Anand Patwardhan, Aveek Sarkar). The court has reaffirmed that artistic freedom includes the right to depict cross-cultural attire/dance sequences and that censorship must withstand the rigorous test of whether it is justified under the enumerated grounds — not whether it merely causes discomfort to some segment of society.