The Curtain Must Fall

**Samik Basu

IV. The Existing Regime in Gujarat & Maharashtra

Having traced the colonial origins of prior restraint and how courts elsewhere in India responded to it, Part 2 turns to the regime as it currently stands in Gujarat and Maharashtra, and argues that even if its procedural defects were cured, prior restraint on theatre remains substantively unjustifiable given the distinctive nature of live performance.

In Maharashtra, the legal position has evolved considerably through judicial and legislative intervention. The Bombay HC’s decision of Pandurang Sawalaram Dhurat v C.P. Godse (1972) struck down aspects of the then-prevailing regime for procedural unreasonableness such as its failure to provide a hearing, reasons, an appellate remedy and a time-bound decision-making process. Much controversially, the HC relied on K.A. Abbas v UoI, which upheld a regime of prior restraints for cinematographic films, to observe that pre-censorship of theatres does not inherently violate Article 19(1)(a) of the Constitution. I say controversial, because the HC failed to consider the obvious differences between the two forms of free speech – theatres and films – which shall be elaborated in Section IV. The Maharashtra state government subsequently amended §33(1)(wa)(iii) of the Bombay Police Act, 1951 in 1973 and the Rules thereunder in 1976, introducing these procedural safeguards and requiring the scrutiny board to comprise persons with relevant expertise in literature and theatre. Therefore, the system of prior restraints in theatre continues in Maharashtra through the power vested under §33(1)(wa)(iii).

The parallel provision in Gujarat – §§33(1)(wa)(iii) of the Gujarat Police Act, 1951 – similarly empowers the state government to provide for the prior scrutiny of theatrical and other public amusement performances by a Board or an Advisory Committee appointed by the State Government. Pursuant to these provisions, the District Magistrate, Ahmedabad framed the Public Amusement Performances (Certificate of Suitability) Rules, 1975 (“Gujarat Rules”). The Gujarat regime is particularly striking because, unlike Maharashtra, the procedural defects identified by various HCs have never been cured. Under the Gujarat Rules, any person seeking to hold a public amusement performance must apply for a Certificate of Suitability from the Gujarat Cultural Programme Certification Board at least one month before the proposed performance by submitting scripts of the play. They provide neither a right of hearing before certification is refused or conditions are imposed, nor an appellate mechanism against the Board’s decision or a requirement that the Board furnish reasons for its decision.

The procedural unreasonableness of these laws is evident from the various HC judgments discussed above. However, these are defects which can be rectified through amendments to the law. The more fundamental question, therefore, lies beyond the procedural safeguards accompanying prior restraint and concerns the substantive reasonableness of prior restraints in theatre itself. Assuming that these procedural deficiencies were cured, can the State constitutionally require a theatrical performance to obtain executive approval and impose modifications on the script before it reaches its audience? This requires us to confront the underlying justification for treating theatre as a uniquely dangerous form of expression warranting ex ante governmental control, and to examine whether such a distinction can be reconciled with the constitutional guarantee of freedom of speech and expression under Article 19(1)(a). 

V.  The Substantive Limits of Theatrical Prior Restraints

The HC cases discussed above often rely on K.A. Abbas v. Union of India to observe that prior restraint of theatrical performances is not per se unconstitutional. This proposition however, overlooks the important fact that K.A. Abbas did not uphold prior restraints as a generally permissible method of regulating artistic expression. It upheld pre-censorship in the specific context of cinematographic films and did so because the Court considered cinema to possess characteristics that justified its differential treatment from other forms of expression. Therefore, to answer whether prior restraints for theatrical performances is substantively a ‘reasonable restriction’ under Article 19(2), one must necessarily engage with the peculiar characteristics of theatre as a distinct form of expression.

The distinction is apparent from the SC’s own reasoning in K.A. Abbas. The SC expressly held that the treatment of motion pictures must be different from that of other forms of art and expression. It identified the “instant appeal, mass reproduction, versatility, realism, coordination of visual and aural senses and the ability of cinematic techniques to produce a particularly powerful emotional impact” as characteristics justifying this differential treatment. The court was particularly concerned with the effect of films on children and adolescents who, in its view, were more likely to suspend disbelief and imitate what they saw on screen. This is precisely why commentators have characterised K.A. Abbas as a decision rooted in a parens patrie approach. The reasoning of the court was thus, clearly medium-specific and cannot be stretched to establish a general proposition that artistic expression may ordinarily be subjected to prior restraint.

In fact, the SC has historically been suspicious of prior restraints in other fields. It has repeatedly struck down laws prescribing pre-censorship of journals, publications and newspapers in cases such as in Romesh Thappar v State of Madras, R. Rajagopal v State of Tamil Nadu and Brij Bhushan v State of Delhi, where the impugned laws were declared unconstitutional. Further, in Reliance Petrochemicals Ltd. v Proprietors of Indian Express, it was held that even under a court injunction, a pre-publication ban can only be justified if there is a “clear and imminent danger to the administration of fair justice.” Therefore, any form of restriction on free speech and expression must demonstrate a proximate connection between the specific expression and the likelihood of unlawful action.

Coming back to theatre as a distinct form of expression, there are several features which set it apart from other media forms: First, theatrical expression is live, ephemeral and variable. Unlike a film or publication, which exists in a fixed form and can be reproduced identically across audiences, a theatrical performance is recreated each time it is staged and may vary through improvisation, delivery, audience interaction and other aspects of the live performance. A script submitted for prior scrutiny therefore cannot necessarily capture the expression that will ultimately reach the audience. Indeed, there is a certain logical absurdity of pre-censoring a paper script when the actual “speech” occurs live through the actors’ live performances, their inflection, body language, gestures, timing and stage direction, all of which are capable of altering the meaning and effect of the written words. Yet, none can be adequately predicted or controlled through advance scrutiny of the script. Second, theatre is inherently limited in its reach. Unlike films, newspapers or other mass-circulation media that can disseminate the same expression to thousands or millions of people, a theatrical performance can ordinarily be experienced only by those who voluntarily attend a particular performance at a particular venue. Third, the audience’s voluntary decision to attend distinguishes theatre from forms of expression that may be encountered involuntarily in public spaces. Cinema exhibition is accessible via mass public theatres or broad distribution channels. Live theatre, by contrast, involves high entry barriers in the form of localized ticket purchasing, limited venue seating, and niche audience self-selection. The state’s interest in protecting “unwitting” or impressionable viewers from offensive content is minimal to non-existent here. These characteristics significantly weaken the justification for subjecting theatre to the same form of ex ante control as other media.

Further, the existence of ex post facto criminal sanctions takes away from the necessity of having prior restraints. The grounds invoked by theatre censorship regimes – public order, decency and morality – are already recognised as permissible grounds of restriction under Article 19(2) and the ordinary criminal law provides mechanisms to address forms of expression that crosses these limits. For instance, §296 of the Bharatiya Nyaya Sanhita, 2023 (“BNS”) criminalises obscene acts, songs and utterance of words in or near public places, while other provisions of the BNS address forms of expression that threaten public order, promote enmity between groups or outrage religious sentiments. 

Repealing the theatre censorship regimes in Gujarat and Maharashtra would therefore not mean that the state would cease regulating theatrical expression altogether. Rather, it would simply change the nature of that regulation, from prior censorship to ex post facto criminal accountability.

Are post-facto penal sanctions any better?

In light of the above argument, it also becomes imperative to comment on the distinction between prior restraints and post-facto penal sanctions. This distinction is crucial because it interrogates the premise of the often-made assumptive argument that prior restraints necessarily pose greater dangers to free speech and therefore must be discarded. The position is however, more nuanced.

The ‘chilling’ effect of prospective criminal sanctions may arguably be greater as the director/theatre manager faces the twin uncertainties of a possible prosecution and an unpredictable sentence. For instance, there have been several instances of criminal cases being filed against theatre organisers and directors for the staging of a play on charges of ‘sedition’ (§124A IPC) and ‘promoting enmity between groups’ (§153A IPC) among others (see here and here). Some of these cases drag on for multiple years before the final judgment is pronounced, causing considerable hardship to everyone involved. A pre-censorship regime, by contrast, offers a degree of ex ante legal certainty at a comparatively minimal cost. If the script is cleared by the licensing authority, there is little chance of subsequent prosecution, so the director may have more confidence in his decision to carry on with the performance. This certainty is vital in theatre, where a substantial investment must often be made in the venue, performers, production and publicity before a performance can take place. This is exactly why some major British film distributors have actually favoured the pre-censorship system of films in the UK as they valued the commercial certainty it provided (¶12.5, ¶12.6).

That being said, this advantage cannot by itself justify prior restraint which remains constitutionally suspect because it reverses the ordinary presumption underlying freedom of speech. Instead of requiring the state to establish that an individual has committed an unlawful act, prior restraints transfer the burden to the individual, who must first obtain the government’s approval before exercising their rights at all.

Further, the very nature of live theatre makes the post facto criminal consequences of unlawful conduct more immediate than other forms of expression. A theatre production requires a specific venue, identifiable performers and organisers and a discrete audience. Unlike mass-market publications that can be reproduced and distributed on a vast scale before enforcement action becomes possible, a live performance is necessarily tied to a particular event. The organisers therefore remain readily identifiable and subject to the ordinary legal consequences of unlawful conduct. Therefore, the possibility of post facto prosecution, civil liability or even intervention during a performance where an actual and imminent threat arises can operate as a meaningful deterrent without requiring the state to pre-censor every theatrical performance. Therefore, the threat of post facto prosecution under the BNS constitutes a less restrictive but equally effective alternative to achieve the state’s legitimate aims under Article 19(2), meaning that the prior restraint regime for theatres fails an important prong of the proportionality test rendering it unconstitutional.

Conclusion

The question for Gujarat and Maharashtra is not simply whether the colonial vestiges of the theatre censorship regime can be repaired through procedural safeguards, but whether it ought to survive at all. A constitutional democracy must be willing to tolerate the possibility that art will offend, provoke and unsettle; otherwise, the state inevitably becomes the arbiter of what its citizens may hear, watch and think. As Lord Willis put it in the debate preceding the abolition of theatre censorship in the UK – “We must give them freedom. We must let them shock us, if they can; for shocks are the best medicine for our complacency.” The curtain, after all, should rise before the censor acts, not after.

This is the second 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.