Daily Times

The imposition of ban on the films such as Padman (based on a taboo subject of menstrual hygiene awareness), and another film ‘Pari’ has initiated a debate and to some extent has also escalated outrage amongst the educated class of people. Local films such as ‘Verna’ and ‘Maalik’ also had to face similar treatment but later cleared off.

The question arises therefore whether the fundamental right of freedom of expression enumerated in Article 19 of the constitution can be negated under the garb of misperceived apprehensions. Both the films were banned on the apprehensions that the content of the films posed threat and were against the traditions, culture and religious norms of our country. Another question that arises is how can few persons controlling a censor board authority determine the content of a film to be anti-Islamic or against the culture or norms of morality?

There is no doubt that by imposing ban on such films, our censor board has demonstrated that it has not come out of mediaeval times and obscurantism. The superior courts have already delineated that freedom of expression. Free flow of ideas and information and democratic norms are the hall marks of good governance principles, which result in the formation of a progressive state.

Recently for the first time in the judicial history of Lahore high court that a ban on an Urdu feature film has been set aside. The judgment has been reported in a law journal: Pakistan Law digest (PLD 2017 Lahore page 273). The setting aside of ban on the Urdu feature film ‘Maalik’ is the first judgement regarding film/cinema industry by the Lahore high court in its judicial history. When the federal government imposed a ban on the film it was blatantly an illegal act because the basic argument involved in the proposition was that after the eighteenth amendment, the censorship issue has been devolved on to the provinces; so how could the federal government impose a ban?

On behalf of one of the petitioners I successfully argued the case and the honourable Lahore High court allowed all the constitutional petitions by accepting the arguments/grounds of the petition and held an important observation by relying on the judgements of superior courts of India that if there is a conflict between the freedom of expression and protection of privacy of unwilling listeners then the former shall prevail and also held that the ban on a film cannot be imposed on mere apprehensions of the government as fundamental rights are superior in nature.

The court further held that the principle underlying a free, democratic society was that every individual had a right to decide what art he or she wanted or did not want. Similar freedom to create art must also be made available to the artists. It was enunciated by the court that freedom of expression would also apply to artistic work presenting controversial and shocking ideas. The court held that the choice, however, remained with the society for rejection of certain expressions of art forms that was controversial.

The ban on ‘Maalik’ was illegal because after the 18th Amendment, the authority to censor lies with the provincial governments

The court in the same judgement discussed ‘marketplace of ideas theory’. Said theory postulated a laissez faire approach to the regulation of speech and expression and stated that the success or failure of ideas, theories and propositions would depend on their own merits and demerit. Notion behind said theory was that rational individuals had the capacity to discern through the process of deliberation and exchange of competing ideas to realize the best possible result. In another case the actions of PEMRA were under a challenge which had imposed a ban on the TV channels that they cannot air Indian content comprising of soap operas and entertainment programmes keeping in consideration the principle of reciprocity. The honourable chief justice, Mr Syed Mansoor Ali Shah declared the ban on Indian content illegal and ultra vires.

The judgement defined the concept of public interest in a comprehensive manner by stating that public Interest or collective community interest is a basket of various public interests including public morality, public order, public health, national security and foreign policy of the country besides fundamental rights of the others.

It is the “general welfare of a populace considered as warranting recognition and protection. It was also decided that principle of reciprocity might be a consideration in foreign policy but it has no sanctity in law. The case is reported as PLD 2017 Lahore 709 (Leo communications Limited versus Federation of Pakistan).

Surely these verdicts are guidelines for the provincial censor boards, which have the regulatory powers regarding the censorship of film-content under Motion Pictures Ordinance. The subject of censorship has been devolved upon the provinces after the eighteenth amendment in the constitution and in the light of the aforementioned jurisprudential principles delineated by the superior courts; the provincial censor boards cannot exercise their regulatory powers in an arbitrary and whimsical manner.

Neither can the censor board has a right to take law into its hands nor it can interpret the section 9(2) of Motion Pictures Ordinance 1969 according to its whims. Before analysing the content of a film, the censor board members should act with holistic approach and read these judgements of superior courts before making up their mind to impose a ban.

The censor board should bear in mind that ever since the creation of mankind, art has served various purposes; it has not only been responsible for entertainment, but also for education awareness as well as a social builder. Hence art in its true form should be appreciated rather perceived as a threat on mere apprehensions or on complaints by few individuals. Such bans not only reflect our intolerant nature as a society but also in the long run it will retard the growth of our entertainment industry.

The writer is a human rights activist and a constitutional lawyer, sheraz.zaka@gmail.com

Published in Daily Times, April 4^th 2018.