[Reader-list] How someone "well connected" got RIK screening Cancelled

[shuddha at sarai.net]

Dear All,

(from an 'urban indian intellectual', especially, but not only, to 
mystics living in rural Mars, rural Mars being a state of mind in the heart
of metropolitan Delhi)

A few days ago, a flurry of postings began, once again, on this list 
(and elsewhere) around screenings (or the prevention of screenings) of 
the film 'Jashn-e-Azadi', this time accompanied by reports that 
screenings of 'Jashn-e-Azadi' were being planned precisely in order to 
suppress and or supplant the screening of another film - ''And the World 
Remained Silent' by one Ashok Pandit.

It was stated in one such posting (Rashneek Kher, quoting/forwarding 
Nishant Dudha on the 22nd of August, Sarai Reader List,'Liberals or 
Hypocrites by Nishant Dudha'>) that entities which the poster/writer 
defined as 'Urban Indian Intellectuals', who (according to the poster) 
'proudly declare themselves liberal and claim themsleves to be the 
reason for the Indian nation state and everything that India stands 
for', are guilty of hypocrisy in supporting the freedom of one film to 
be exhibited, and suprressing the freedom of another to be shown.

These are serious charges. And need to be addressed seriously. And I 
hope to contribute to a serious discussion of these charges through this 
and subsequent postings. Right now, I am going to discuss the 
implications of the fact that a group of citizens in Delhi have decided 
that they have the authority to tell the police to take steps to prevent 
a screening that is yet to take place because of their understanding 
that the screeing will violate the law, specifially the provisions of 
the Indian Cinematograph Act.

We know this from Rashneek Kher's subsequent posting made on the Sarai 
Reader List on August 25 - <How someone "well connected" got RIK 
screening Cancelled> - where he writes -

"...we went to the Police Station next to the venue where Sanjay Kak had 
manipulated his way into (sic). We filed a complaint and since Sanjay 
Kak is breaking the law of the land by screening a movie which does not 
have necessary censor certificate, the Police did the rest."

I hope that you all notice the smugness of the expression, "the Police 
did the rest". Notice, also that the person (Rashneek Kher) who had 
earlier so piously stated that although he thought that 'Jashn-e-Azadi' 
was a film he thouroughly disapproved of, and that the public disruption 
of whose screenings was something he tacitly endorsed, he still did not 
agree (with Aditya Raj Koul) that it should be disallowed by police 
intervention in a posting made on this list on the 31st of July. See, 
his posting <Re:[Reader List]Police stops screening of Jashn-e-Azadi> 
(31/7/07).

Within the space of less than a month, he (Rashneek Kher) has gone from 
quoting Voltaire to defend the freedom of those he disagrees with to 
proudly narrating to us all as to how he and others (the 'we' of his 
posting) went and complained to the police in Delhi to stop a screening.

These gentlemen believe that the law (like the consistency of their own 
position vis-a-vis free speech) is in their pocket, and that they can 
make it dance to any tune they sing, and make it do whatever they will. 
We will get to precisely what the law does or does not say later.But for 
now, I cannot but express my awe and admiration for their supreme self 
confidence. Perhaps it would be more accurate to call it a grandiose and 
self righteous arrogance. Does it not stem from a tacit understanding 
that some deeper structures of power stand close to them, encouraging 
them, perhaps even guiding them, as they play at being cultural keystone 
cops?

I live in the city of Delhi, hold an Indian passport and make my living 
by working with images, ideas, words and information. I suppose that 
makes me  an 'urban Indian intellectual', at least according to the 
vocabulary of the above mentioned postings, which could be made just as 
probably (or not) by the mystic denizens of rural mars, since their 
disdain for 'urban, indian, intellectuals' seems to indicate that they 
must be something else altogether. I hope to be corrected, and to be 
made to realize that the authors of these postings are just as urban 
(should I say urbane), much more Indian, and definitely just as, if not 
more inventive in their intellectual capacities than I and others who 
stand accused by them are.

However, lets get some things clear about what I am not. I am neither a 
liberal, (in that I do not subscribe to a classical liberal definition 
of politics, or to a liberal endorsement of, or advocacy of state power) 
nor can I in my wildest imagination claim that I represent the 'reason 
of the Indian nation state'. I would hope that by now it is more than 
amply clear to the readership of this list that I represent something 
quite to the contrary to the reasons of any state present, past or 
future. I say this, not to score some cheap debating point but to 
introduce into this discussion a question about whether or not you can 
automatically make a lot of assumptions about the politics and practices 
of someone you happen to put a label on. Perhaps, in a debate it would 
be wiser to pay closer attention to what people actually say or have 
said in the past, rather than to leap to conclusions and judgements 
unwarranted by the public record, especially on a publicly avaiable, 
carefully archived list. Whover does so, runs the risk of having 
themselves exposed as charlatans. I suppose that possibility does not 
overly worry Rashneek Kher and his cohort.

However, since, those of us who, to whatever extent, due to the 
accidents of geography, history, practice and circumstances, fit the 
taxonomic straightjacket of the phrase 'urban Indian intellectual' have 
been asked to account for our 'hypocrisy' with such touching sincerity, 
on this list, I thought I would provoke this discussion further by 
asking a few questions of my own about the methods and motives of those 
who have made these postings.

They have in fact done a great deal more than making mere postings. They 
have gone to such great lengths as writing complaints addressed to the 
SHO of the Hauz Khas Police Station demanding that a screening of 
'Jashn-e-Azadi' at Kamla Nehru College be prevented on the grounds that 
the said film did not carry a certificate from the Central Board of Film 
Certification. Hence, it was held in the complaint that the screening of 
the film would constitute an offence under the Cinematograph Act.

I will address their motives and justifications for doing so, separately,
in another posting.

We might recall, that the screening of the same film in Mumbai, at 
Bhupesh Gupta Bhavan, was stopped on the same grounds. So there is a 
pattern here. Be it Delhi, or Mumbai, a small, tight, highly organized 
and motivated circle of individuals is at work, perhaps under higher 
direction, perhaps not, following and harassing a film and a filmmaker. 
They are using everything they can, the law (or their twisted 
understanding of it), hystrionics, innuendo, and as I hope to show 
subsequently, slander. Right now, we will stick to their reading of the 
law. Because their reading of the law has serious implications for our 
understanding of culture and cultural practice in our milieu.

How do these gentlemen invoke the law? How, in fact, do you, in India 
today, harass a filmmaker and prevent a film from being screened, if he 
(the filmmaker) refuses, especially on grounds of principle, (because of 
his opposition to censorship) from adorning his work with a piece of 
paper from the Central Board of Film Certification that deems it worthy 
of 'public exhibition' to Indian citizens? You call in the police and 
invoke the Cinematograph Act. You hope that the police 'does the rest' 
for you. You become loyal whistleblowers, the good guys, who with such 
consideration and care protect the rest of us from having to watch 
something that has not been duly certified by the Central Board of Fim 
Certification.

This means we need to undertake a careful examination of how the 
Cinematograph Act actually defines the issues of film exhibition, and 
how it defines, or does not define a public for the purpose of film 
exhibition.

Remember, here we are talking about a film and its public, so no appeals 
to the definition of public with regard to other forms, say, acts that 
pertain to 'Dramatic Performances', or the readership of a book, will 
suffice, because they are irrelevant in this instance. Since the 
gentlemen have invoked the law, and that too a specific law in their 
complaint, we have to stick for the moment to what constitutes a legal 
definition of a 'cinematic public'in India today.

[Note: For the moment, I am not arguing in detail as to whether the 
cinematograph act, and the apparatus of film censorship, or almost all 
forms of censorship per se are desirable or not. I think they are not, 
and I think it is a shame that we are still straddled with this totally 
useless and insulting piece of legislation that mocks the intelligences 
and sensibilities of adult men and women and treats them as infants or 
imbeciles or both. I think that the censorship system, and the 
cinematograph act should be scrapped. My views on this account are well 
known by now, on this list, as well as elsewhere. But that is not the 
issue here.]

So, for the moment, let us stick to the issue at stake. Does a screening 
of a film, of any film, in any educational institution, say a college, 
qualify as being an act that requires a filmmaker to produce a 
certifiate from the CBFC. Does the gathering that collects for such a 
screening, in such a setting (of an educational institution, or in a 
space that lets people in by a non commercial invitation) qualify as 
being a 'public' as per the provisions of the relevant law? Does a 
filmmaker, or anyone else, who shows such a film commit an offence under 
the cinematograph act?

If it does, then appeals to the police to prevent a screening have a 
basis in law (even if we disagree with that law substantively) If they 
do not, then they are only instances of arm-twisting of the worst kind. 
I want to know how to read the motives that make a group of individuals 
sit up and go straight to the police in order to deal with a film. How 
in other words, can we read the unfolding text of the police school of 
film criticism?

The Cinematograph Act merely says that any  public exhibition of a film 
requires a certificate that has to be granted by a licensed authority 
(board of certification) . It does not tell us what constitutes a public 
place, nor does it define a public. Is a gathering of friends in a 
residence a public gathering, is a class room a public place, is a club 
a public space? On all these issues, the cinematograph act itself is silent.

So how do we know what is a public space? Is every gathering of people a 
public?  What, legally, constitutes a 'public' insofar as the exhibition 
of any film is concerned?

I had a telephonic conversation with Lawrence Liang at the Alternative 
Law Forum in Bangalore yesterday about how one might read and understand 
the word 'public' (esecially in the face of the absence of any 
qualifiers or definitions in the Cinematograph Act). Here is a gist of 
what he said -

<There are only two sources in Indian law that seek to define the 
'cinematic public' - one comes from taxation law, from entertainment tax 
regulations, and the other, from our old friend, the Copyright Act.

Let us deal with each in turn,

The 'Public' for a film,  for entertainment tax purposes, is any 
gathering of people who have been brought together to see, hear, or 
otherwise enjoy a film, were, the purpose of the exhibition is the 
commercial gain of the exhibitor. This is an idea of the public linked 
to a notion of it as a 'purchaser' of the commodity which is the 
exhibition of the film. If tickets are sold, or even, lets say, if the 
person or persons who arrange for a screening stand to gain in pecuniary 
terms because they also sell space for 'advertisements' at the screening 
venue, we could, then, talk about a 'cinema/film public'

A screening in a college or educational or research institution does not 
qualify as a 'public gathering' on this account. So this one is easy to 
deal with.

Now comes the definition of the term public, which is broader, in the 
copyright act. The question is, is it broad enough to merit police 
intervention in this case?

The copyright act too, does not tell us what a public is directly, but 
it tells us what 'communication to the public' means with regard to a 
film, or any other work that may be reproduced, by saying -

"Communication to the Public means, making any work available to been 
seen or heard or otherwise enjoyed by the public directly...regardless 
of whether any member of the public sees, hears or otherwise enjoys the 
work so made available."

The suggestion as to what constitutes a 'public' lies in the second half 
of this quotation. What does the law mean when it says that 'the act of 
communication to the public' can be said to occur 'regardless of whether 
or not any member of the public sees, hears or enjoys the said work'. It 
means that the test of publicness lie in the protocol of entry and 
invitation to that space. A space is a public space, even if no public 
enters it, as long as theoretically, any member of a public could enter 
such a space. As far as the law is concerned, publicness is an attribute 
of possibility, contingency and the protocols of entry and presence, not 
of the number and accumulation of persons in a given space. This is 
clear from the fact that the law defines a space as public even if no 
one were present. There can be a legal 'public' of many, of two, of one, or
of none.

Consequently, publicness can be defined as a gathering, or the 
possibility of a gathering that takes place in such a space. And here 
the fact of possibility has a greater weightage than the fact of actual 
presence.

If a space allows entry to its pretincts by invitation, or disallows a 
body of people, it cannot be deemed a public space. Hence a gathering 
that collects in such a space is not a public. At least not in the eyes 
of the laws that regulate access to audio-visual culture.

<END of gist of my conversation with Lawrence Liang>

You might say that this is a tautology. I do not disagree, but it is not 
I, or Lawrence Liang that framed the terms of this tautology, the 
lawmakers who wrote it into the law did. So neither I, nor Lawrence 
Liang can be held responsible for the twisted contours of its reasoning. 
And as far as I am concerned, we do not ordinarily seek to prosecute or 
not to prosecute on the basis of whether or not a law is tautological. 
At least I have not heard of any cases where the police or public 
prosecutors refuse to arrest or press charges only because a law is 
tautological. The forces of law and order are not known for their taste 
in philosophical niceties and nuances.

I am also not interested in debating here the many varieties of common 
or common sense understandings of the word 'public' - to which there can 
no doubt, be many shades. Since we are discussing a matter where the law 
has been explicitly invoked, (as in a group of citizens have made a 
complaint to the police about the violation of a specific law) we have 
to restrict our discussion to the strictly legal reading of the term 
public. If they had not gone to the police, we could have had a 
discussion on their understanding of publicness as being one among many 
understandings, but once they have gone to the law, they have closed the 
door to any appeals to common, consensual or commonplace understandings.

But we digress, lets get back to the legal definition of what the public 
means in the context of the exhibition of a film. This means, the test 
of whether a gathering constitutes a public stems from the terms on 
which people enter that space. A space that anyone might enter,either 
freely, or on purchase of a ticket, such as a railway station, a park, a 
commercial cinema hall, a gallery, or a public library, are indeed 
public spaces.

However, other spaces, such as clubs, libraries that restrict entry to 
non-members, or educational institutions such as colleges, (that 
restrict entry to all other than students, faculty, staff and invited 
guests) are in fact not public spaces. The audience for a screening of a 
film in a commercial cinema, an open space - say a park, a public 
library and an educational institution would each be instances of 
different kinds of gatherings, some of which would be public, and others 
would not.

This, by the way, is exactly the kind of test we need to undertake 
before we jump to conclusions as to whether or not a moderated blog, or 
the act of moderation on a moderated blog, is an instance of censorship.

If the terms of the blog are that it is moderated, then everyone knows 
that this is so.  Or can know that this is so. Similarly, when an 
invitation is made by the editors of a book, everyone knows that there 
are editors, and that there will be edited content. Editing or 
moderation in such instances cannot amount to censorship because they 
are being undertaken by the authors and custodians of the works 
themselves. There is a tacit assumption on the part of the editors or 
authors of a work that their audinence, or readership, let's them be the 
primary shapers of its contents. They can be respondents, elsewhere, if 
the space of response is closed, but they cannot claim automatic entry 
into the control of authorship of the space created in and around the 
body of the work.

This is the compact on which much of the transaction of culture is 
based. There are other more open models for cultural transaction, but an 
effort to ritualize a normative hierarchy between a variety of models is 
completely pointless as the first model does not seek to supplant or 
stamp out the latter. They can, and do, coexist, as is excellently 
demonstrated by the fact of the coexistence of this open, unmoderated 
list, with other moderated fora. (I hope here that Arnab Chatterjee 
recognizes, that once again, I am addressing his questions here). There 
is a difference, for those of you who are inclinded to these matters, 
between the act of inscription that a 'reader' brings to a text, and an 
attempt to efface the text through calumny.

If however, all content, no matter for whom, or to be published wherever,
had to pass through an official body for approval or rejection, separate
from and standing above, authors, custodians, moderators and editors, then
of course there would be censorship.

An edited book, a moderated blog or mailing list, an educational space 
or a screening in an educational institution, a party in someone's house 
- none of these are public spaces.

An unmoderated list, such as this one, is a public space, which is why 
we have robustly resisted screening out any public messages by subscribed
members on this list. Our commitment to keeping a public space publcly open
does not stand in variance to our equally strong commitment to safeguard
spaces and acts of enquiry, exchange and reflection that we feel need to be
protected from general public scrutiny and/or interference. Which is why,
for instance, the Sarai Readers are not 'un-edited' publications. In fact,
a commitment to publicness and a commitment to privacy are both guarantors
of liberty and act as necessary and complementary influences on what
happens across private and public domains.

A screening of a film in a public park (one that does not debar entry), 
or in a commercial cinema theatre is a screening in a public space, to
which anyone, (or anyone who has bought a ticket) has automatic right of
entry. Corrolarily, the custodians of an educational institution, their
students and faculty have every authority, to decide when to show a film,
which film to show, which film not to show, and when to show or not show a
film, and whom to invite for their screenings. And none of these actions
constitute censorship, becasue they are not public spaces that deal with
constituted publics. Their decisions do not affect the freedom of those who
are not part of these spaces to see or not see or show anything elsewhere.
If I decide to see a particular film at home, or not see a particular film,
it has no bearing whatsoever on the right of that film to be seen elsewhere
and by other people.

By definition, entry to an educational institution, such as Kamla Nehru 
College, is barred to all but students, staff, faculty, and invited 
guests who are invited because their presence is in some way related to 
the curricular or extra-curricular activities of the institution. A 
college is not a public space. A gathering in a college to watch a film 
- an activity that takes place within the protected space of what is 
educational for the students - is not a public screening.

In fact, even the machinery of the state recognizes this distinction. 
And if you look hard enough for it, you do find it. In other words, 
before you run to the police station the next time, try and spend some 
hours in a library, or at least, google. You will fall less harder on 
your self-assured faces.

There are at least two documents that demonstrate that section 10 of the 
Cinematograph Act (1952)-  precisely the one that states explicitly that 
no person shall exhibit any film in any place 'elsewhere than in a place 
licensed under the act'- are not applicable to educational institutions.

These are as follows;

1. Report on the Progress of Audio Visual Education for the Year 1956-57 
of the Ministry of Education, Government of India (Which I will call the 
 '56-57' Report)

and

2. Minutes of the 26th Meeting of the Central Advisory Board of 
Education, Government of India, 1959 (which I will call the '59' Minutes)

Both of these documents indicate that several states (remember, both 
censorship and education are 'state and/or concurrent subjects') had 
issued a directive (a hitherto unchallenged directive, to the best of my 
knowledge) that explicitly states that -

"The State Governments of Orissa, Madras, Mysore, Punjab, Bombay,, 
Bihar, Kerala and U. P. have exempted all recognised educational 
institutions from the operation of the Section '10' of the Cinematograph 
Act, 1952," ('56-57' Report)

see - http://education.nic.in/cd50years/g/12/24/12240801.htm

and that -

"The following States have exempted the schools from the operation of 
Section 10 of the Cinematograph Act, 1952: Andhra, Madhya Pradesh, 
Punjab, Bihar, Bombay, Kerala, Uttar Pradesh, Orissa, Madras, Mysore, 
Jammu and Kashmir, Assam, and Rajasthan.The matter is still under 
consideration of the State Government of West Bengal."('59' Minutes)

see - http://education.nic.in/cd50years/g/12/23/12230108.htm

Give that these dates are prior to the linguistic organization of 
states, they apply practically to the entire country. Successive 
'states' have simply 'inherited' legislation on these matters from their 
'precursor' states, with Delhi having inherited legislation pertaining 
to education and entertainmnent from Punjab. So this is clearly the case 
in Delhi, and in Mumbai - Educational institutions are exempt from 
section 10 of the cinematograph act (1952). And any effort to make them 
part of the regime of the cinematograph act is actually in contradiction 
of the law as it stands today. If any change in this structure has 
occurred, of which I am unaware, then we have to ask why and how such a 
draconian overwriting of an enlightened exemption could pass unnoticed. 
But, as far as I am aware, there has been no change in the stipulation 
that educational institutions be made exempt from section 10 of the 
Cinematograph Act. (Why would the documents that assert that is the case 
be on on the department of education's public website on an official 
nic.in server if they were no longer in force ?)

In other words, any attempt to derail such an activity in an educational 
institution, by inviting the police to intervene, has no sanction in the 
letter of the Cinematograph Act, or in any law. It can and must only be 
seen as thuggish intimidation by a group of highly motivated 
individuals. It is entirely upto the facutly, students and 
administration of the educational institution concerned to decide 
between themselves what they will or will not allow to be seen and shown 
on their premises. Neither the police, nor the censor board, nor any 
busybodies with their motivated agendas have any business interfering in 
the life of an eduacational institution. Those who complain to the 
police, and the policemen responsible for acting on that complaint both 
violate the sanctity and freedom of an educational space, the rights of 
students and faculty to watch and discuss a film, and act in gross error 
with regard to the very law that they seek to implement.

I hope that a reasoned and informed discussion, and not the trading of 
motivated charges, will help us in clearing the ground as to where 
exactly the burden of hypocrisy lies in this case.

To be continued,

Shuddha