The Curtain Must Fall

**Samik Basu

Introduction

In 2017, the Bombay HC admitted a writ petition filed by the famed Marathi actor and director,  Amol Palekar challenging the regime of prior-censorship of theatrical performances and plays in Maharashtra under the Bombay Police Act, 1951 and the rules thereunder. The challenge contends that the mandatory pre-censorship of theatrical scripts is arbitrary and violates the fundamental right to freedom of speech and expression under Article 19(1)(a) and the right to equality under Article 14. This matter was recently listed for hearing in 2025 and theatre managers, performers, directors, playwrights and the general civil society in Maharashtra eagerly awaits a decision. 

However, the problem is not confined to Maharashtra. Gujarat similarly retains a statutory regime of prior scrutiny for theatrical performances under §33(1)(wa)(iii) of the Gujarat Police Act, 1951 with an arguably weaker set of procedural safeguards. Such laws often require the director of the play or the theatre manager to first, obtain a certificate of suitability from a government-appointed ‘expert’ body of artists and musicians and then, obtain the final permission to stage the play/theatre from the police or magistrate. At both these stages, the authorities may either reject permission to stage the play or provide permission conditional on modifications or deletions being done to the script.

In the past, pre-censorship of theatres and plays have given rise to several highly publicized controversies such as – the large number of cuts imposed on Vijay Tendulkar’s play ‘Sakharam Binder,’ the ban on the play ‘Ghashiram Kotwal’ after widespread political protests in Maharashtra, the denial of the staging of the play ‘Hey Ram’ based on the Gujarat riots in Chennai, and many more. While the infamous Dramatic Performances Act, 1876 now stands repealed by the Indian Parliament, its model of executive pre-censorship continues in Gujarat and Maharashtra. This is despite most Indian states abolishing their pre-censorship regimes after multiple High Court rulings invalidated their respective state legislations that empowered the executive to do so. 

In free speech terminology, this manner of restriction – which chokes speech at its source and prevents it from entering the “marketplace of ideas” – is called ‘prior restraint.’ Prior restraints are distinct from post facto restrictions, such as the threat of criminal sanctions, in terms of their impact – the latter is said to “chill” expression through the threat of prosecution, whereas a prior restraint “freezes” it by ensuring the material may never see the light of day. Prior restraints in theatre has both Article 19(1)(a) and 19(1)(g) angles to it – one, it implicates the right to free speech and expression of actors, performers, playwrights and directors who seek to communicate creative, political, or social ideas through theatre and plays; and second, it also implicates the right to carry on business of theatre managers and venue owners whose livelihoods are affected if permission to host a performance is denied. To validate it under Article 19(1)(a), Indian courts have often relied upon K.A. Abbas v. Union of India, which upheld pre-censorship of cinematographic films, to argue that prior restraint is not inherently unconstitutional. This article argues that the application of K.A. Abbas to theatrical performances warrants reconsideration given fundamental differences between recorded films and live theatre.

To this end, this article first, traces the colonial foundations of prior restraint laws in theatre censorship in India and the political and paternalistic assumptions underlying it; second, it examines the post-independence treatment of theatrical censorship across different States and by various HCs, demonstrating that although courts have often accepted the possibility of prior restraint in principle, they have repeatedly expressed unease with the breadth of executive discretion and the procedural deficiencies accompanying it; and lastly, it argues that the distinctive characteristics of live theatre – particularly its immediacy, ephemerality and capacity for improvisation – make the transplantation of the K.A. Abbas rationale inappropriate. 

History of Prior Restraint Laws in Theatre Censorship in India 

The regime of theatre censorship under the existing Gujarat & Maharashtra Police Acts trace their origins in the colonial vestiges of the now-repealed Dramatic Performances Act 1876 (the “1876 Act”). Dr. R.K. Das Gupta, in his study of the political background of the 1876 Act, documents how the 1876 Act was conceived as a direct response to the rise of political expression of nationalist sentiment through theatres, plays and other dramatic performances in the early-1870s. The immediate trigger seemed to be a Calcutta HC judgment which acquitted the theatre managers of the Great National Theatre in Kolkata for staging the play Surendra-Binodini Natak on the ground that the ingredients of the offense of obscenity under the Indian Penal Code (§294) were not met. Consequently, this special legislation was enacted which empowered the executive to prohibit any dramatic performance which in its opinion was “scandalous,” “defamatory,” “seditious,” “likely to excite feelings of disaffection towards the government” or “likely to deprave and corrupt persons present at the performance” (Preamble & §3). Disobeying a prohibition order carried criminal consequences of imprisonment and/or a fine (§4 & §6). It also authorized police officers to enter performance venues, arrest participants and prevent staging of plays without any prior judicial scrutiny or procedural safeguards such as an appeal provision, a right to be a heard for the aggrieved director/theatre manager etc. (§8 & §9). 

The enactment of the 1876 Act must be viewed in light of the larger political context of a series of repressive colonial measures passed in the same decade such as the insertion of the sedition clause in the Indian Penal Code (1870), the Vernacular Press Act (1878) and the Arms Act (1878). These enactments formed a coordinated strategy aimed at suppressing emerging nationalist expression across multiple public spheres – newspaper, press, literature, theatre and public assembly. The broader objective of these measures was to silence challenges to the legitimacy of the colonial government. In the book chapter ‘The Conservative Constitution,’ Gautam Bhatia identifies another deeper cultural assumption underlying prior restraint legislations like the 1876 Act: namely, a belief rooted in colonial paternalism that the Indian population was inherently gullible and therefore could not be trusted with hearing or watching certain forms of speech as autonomous citizens (p. 112). This assumption arises from an argument of ‘colonial difference’ that the Indian population is so conditioned by their social and cultural context that they cannot (and should not) receive certain forms of speech. §3(c) of the 1876 Act which authorised the executive to prohibit dramatic performances which are “likely to deprave and corrupt persons present at the performance” is particularly illustrative of this mindset. This clearly proceeds on the premise that Indian audiences are susceptible to inflammatory ideas and incapable of critical thought. Thus, in allowing the state to decide which public performance could lead to public unrest before it has even been staged, such prior restraint laws also deny the autonomy of citizens in evaluating the public performance for themselves and making up their own minds.

Despite the transformation of the nature of the government from a colonial administration to a democratically-elected Indian government, many such colonial laws, including the Dramatic Performances Act, remained on the statute book long after independence. The persistence of colonial continuities in restrictive free speech laws in post-independence India has been extensively documented in existing constitutional and historical literature (see here, here and here). 

This is despite the fact that the corresponding legislation in the UK for theatre censorship, introduced in 1737 and then re-formulated in 1843, was repealed through the UK Theatres’ Act as early as in 1968. The UK Theatres’ Act, 1968 was introduced based on the recommendations of a Joint Select Committee of the House of Commons and the House of Lords which suggested scrapping the regime of theatre censorship and instead subjecting plays to the ordinary criminal law of the UK on obscenity, incitement to racial hatred, libel, blasphemy and public order. The only surviving form of ex ante restriction in the UK concerns the licensing of the venue in which a performance is held rather than the content of the performance itself (§§12–14). The Joint Select Committee also observed that prior restraints for theatres and plays have already been abolished in France, Germany, Canada, the United States, New Zealand and most Australian states (Appendix 24).

Post-Independence Treatment of Prior Restraint in Theatres in Various States

While the 1876 Act continued to remain in force post-independence, the subject of “Theatre and Dramatic Performances” (Item No. 33) was enlisted under the State List of the Seventh Schedule of the Indian Constitution, thereby enabling state governments to legislate in this area. States such as Gujarat, Rajasthan, Tamil Nadu and Maharashtra introduced state legislations incorporating identical provisions to the 1876 Act. Similarly, the Madras Dramatic Performances Act, 1954 was extended via notification in the Union Territory of Delhi. 

It is prudent to highlight the treatment of these enactments for two reasons: first, the courts have repeatedly found such legislations and regulations constitutionally invalid primarily on procedural grounds; second, and more importantly, some of these judgments contain observations revealing a deeper judicial unease with the very idea of vesting executive authorities with the power of imposing prior restraints.

The constitutional difficulties with the post-independence continuation of the 1876 Act became apparent soon after the Constitution came into force. As early as in 1952, in the case of Madanlal Kapur v. State of Rajasthan (1952), the Rajasthan HC ruled that §§3, 4, 6 and 8 of the Rajasthan Dramatic Performances and Entertainments Ordinance, 1949 (modelled closely on the 1876 Act) were violative of Article 19(1)(g) of the Constitution. The court focused on the lack of procedural safeguards, particularly – (i) lack of a reasonable opportunity to be heard prior to the prohibition order being passed by the Magistrate; and (ii) no right of representation before an impartial authority challenging an adverse order by the Magistrate – as grounds for declaring the provisions as unconstitutional. The state of West Bengal, on the other hand, repealed the operation of the 1876 Act in 1962 itself. 

A similar problem arose in Delhi. §28(1)(y) of the Delhi Police Act, 1978  confers powers on the Commissioner of Police to make regulations for, inter alia, the licensing, controlling and prior scrutiny of theatrical and other performances for public amusement in the interests of public order, decency or morality. Pursuant to this power, the New Delhi Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement Regulations, 1980 required scripts to undergo prior scrutiny by a scrutiny board before a certificate of suitability could be issued and a performance licence granted by the Deputy Commissioner of Police. In Ruchika Theatre Group v. Delhi Administration (1985), the Delhi HC held the provisions to be violative of Article 19(1)(a) because the scrutiny board contemplated by the regulations had never been constituted, leaving the censorship function to the police. In the absence of such a board, the court observed that “artistic and cultural imagination would get annihilated” if subjected to the “ignorant and muscle-oriented thinking” of law enforcement. Significantly, however, the judgment appears to leave open the possibility that prior scrutiny could be constitutionally permissible if entrusted to a scrutiny board comprising persons familiar with the arts and culture. 

Similar concerns regarding the absence of procedural safeguards arose in challenges to the 1876 Act itself. Division Benches of both the Punjab & Haryana HC (Comrade Chanan Singh v UoI) in 1960 and the Allahabad HC (The State v Baboo Lal) in 1956 held §§3 and 10 to be unconstitutional on the ground that there was neither any mechanism for appeal/review of an adverse order by the licensing authorities nor any provision providing an opportunity to make representations against a §3 prohibitory order. In Chanan Singh, the Ferozepur District Kisan Sabha was denied permission to stage a play at a farmer’s conference, whereas in Baboo Lal, the public complaint to the Additional District Magistrate alleged that the theatre group had distorted the original story by Munshi Premchand to suit their political ideology in their version of the play. The decision to hold §3 of the 1876 Act unconstitutional in these cases thus, stemmed from a deeper apprehension of the court towards the “alarming tendency” of executive authorities to suppress political opposition by characterising plays and theatres as “likely to deprave and corrupt” the public (¶11). Noting these two judgments, the 248th Report of the Law Commission of India (2014) recommended the repeal of the 1876 Act (¶27), post which it was finally repealed in 2017. However, the savings clause of the Repealing Act ensured that state enactments which incorporated provisions of the 1876 Act would continue to remain in force.

The experience of Tamil Nadu provides a more decisive rejection of the substantive aspects of prior restraints in theatre censorship. Tamil Nadu repealed the application of the 1876 Act within the State and enacted the Tamil Nadu Dramatic Performances Act, 1954 (“T.N. Act”). Although the T.N. Act introduced greater procedural safeguards than other state legislations – including an opportunity to show cause and a statutory appeal to the HC – it was declared as unconstitutional by the Madras HC in N.V. Sankaran v State of Tamil Nadu (2013). Particularly, the Madras HC found the definition of ‘objectional performance’ and the ground of the performance being “grossly indecent or scurrilous or obscene or intended for blackmail” for a denial of permission to be vague and beyond the scope of reasonable restrictions under Article 19(2). The blanket provision for prior submission of scripts of all plays and theatrical performances under the Tamil Nadu Dramatic Performances Rules, 1955 was also struck down on the following grounds – (i) excessive delegation, because the T.N. Act only empowered the executive to “control” and “regulate” dramatic performances; (ii) it did not differentiate between performances that have a potential to breach peace and those which do not; and (iii) time is of the essence in theatrical performances, which often have impromptu dialogues, and waiting for approval and script modifications just hours before the show renders the right to perform nugatory. Where the theatrical expression was considered defamatory or offensive to an individual, the appropriate remedy lied in the ordinary criminal and civil law available, rather than in allowing the police or district collector to act as a pre-censor. In response to a proposal by the state government that they would appoint an expert body of artists for granting certificates of suitability prior to the final permission by the police, the HC rejected it as an inadequate safeguard. It noted that an expert body whose members were nominated by the state government could not cure the underlying defect of executive censorship, as this system might fall to political pressures and would not be independent.

This is the first piece in the two-part series

**Samik Basu is a Year IV, B.A. LLB (Hons.) student at the National Law School of India University, Bengaluru.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.