The recent amendment to The Cinematograph Act, 1952 stirred up a storm in the film fraternity. Not so long after the Centre released the draft Cinematograph (Amendment) Bill 2021, concerns regarding its constitutionality started flowing, with filmmakers and actors criticizing and slamming the bill. What used to follow earlier, under the 1952 Act, was a system where the Central Board of Film Certification (CBFC), a body in which everyone is a government appointee, used to have the final authority to eliminate offensive or politically subversive content. The core of the entire legislation, Section 5B, states that any film that is against the “interests of [the sovereignty and integrity of India] 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 offense” can be denied a certificate. With all these conditions already in place, the new draft proposes a provision that would allow the Government to order re-certification for a film already certified by the CBFC. Besides this, the draft also proposes – penalization of piracy, grant of eternal certificates, and age-based certification – which have gone uncriticised. The overall regressive provision of re-certification, coming after the new OTT regulations and the abolition of the FCAT, has called for another trial of the State’s legislative powers.
The Death of Creative Freedom
Living in a democratic country, which is not yet free from social dogmas, having the right to artistic expression and creative freedom follows as a matter of course. Curbing this freedom, violates not only the right of the filmmakers to provide real insights but also suppresses the ability of the viewers to think critically and make informed decisions. Several filmmakers voiced their concern over the proposed extra layer of censorship, particularly when there has been a long-standing demand to do away with the existing censorship process. They are worried that the gains made by the committees headed by Justice Mukul Mudgal and Shyam Benegal – which recommended moving to a regime of no-snips-and-cuts – would be undone. Filmmaker Kamal Hasaan took to Twitter and wrote, “Cinema, media and the literati cannot afford to be the three iconic monkeys of India. Seeing, hearing, and speaking of impending evil is the only medication against attempts to injure and debilitate democracy.”
The government has cited the much “used and abused” clause of Article 19, i.e., clause 2 dealing with “reasonable restrictions,” to justify its revisionary powers. Over the years, the Supreme Court and various high courts have frowned upon this tactic. The Supreme Court, in K.M. Shankarappa v. Union of India, proclaimed that the Union Government cannot exercise revisional powers in respect of films that have already been certified by the CBFC. Therefore, it follows from the above discourse that creative freedom is only an extension of the fundamental right to freedom of speech and expression, and for the true enforcement of Article 19(1)(a), denying creative freedom must be termed unconstitutional, for creativity can only prosper in an unhindered environment.
Mob Censorship Leading to Irreparable Losses
The dissolution of the already standing Film Appellate Tribunal through The Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021, deprives the artists and filmmakers of a redressal mechanism, particularly dealing with their field of work and making High Courts the only institution to hear any arising dispute. Adding to this, the new power to recall CBFC certified films would delay the production and development of the films and keep the producers at risk of losing a huge amount of capital in lieu of re-shoots, restructuring the production process, etc. Furthermore, to allocate the budget constraints in this process, the executive team of a film may have to remove the workforce, leading to unemployment and economic losses in the field.
A new proviso added to Section 6 of the already enacted Cinematographers Act, 1952 states, “on receipt of any references by the Central government in respect of a film certified for public exhibition, on account of violation of Section 5B (1) of the Act, the Central Government may, if it considers it necessary so to do, direct the chairman of the board to re-examine the film”. Here, the word “any reference” means that the Centre can invoke its powers to re-examine a film upon a request/complaint filed by any person, no matter their political or vested interests. This may be done without giving any explanation in writing or providing an opportunity to the filmmakers to present their concerns. Such unchecked power can be exercised under ambiguous and sweeping grounds of “indecency” or “public order.” This will gradually overburden the concerned authorities and trample the creative and intellectual thinking that goes behind the making of a film under the guise of public inclusion.
The verdict of the Supreme Court in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat stated that a total prohibition under Article 19(2) to (6) must also satisfy that a lesser alternative would be inadequate. There have been numerous instances where the public pre-emptively denied the core of certain films and dissented on their public exhibition. Enaction of the bill would mean that the final call as to whether a film would be up for public screening would be in the hands of the State. The government may then use its final authority to nullify a film’s exhibition, even though the same has been passed by the CBFC. In Sree Raghavendra Films v. Government of Andhra Pradesh, the exhibition of the film ‘Bombay’ in its Telugu version was suspended in the exercise of powers under Section 8(1) of the A.P. Cinemas Regulation Act, 1955, despite being certified by the Censor Board for public exhibition. It was later found that the authorities who passed the said order did not even watch the film in the first place. The passing of the said amendment may end up ensuring that such situations frequently arise, so much so that the government may use its power to stall the release of films that may not confer to their political ambits.
Existing Institutional Mechanisms
“… you’re decreasing the confidence in the institutional body which the CBFC is. It is important for the film fraternity to raise their concerns and put down their suggestions,” Filmmaker Prateek Vats told Press Trust of India criticizing the amendments. Provisions of the drafted bill allow the government to undermine the authority of the CBFC. In this regard, the following remarks of the Hon’ble Bench in the K.M. Shankarappa case are of significance: “Once an expert body has considered the impact of the film on the public and cleared the film, it is no excuse to say that there may be a law and order situation. It is for the concerned state government to see that law and order is maintained. In any democratic society, there are bound to be divergent views. Merely because a small section of society has a different view, from that taken by the Tribunal, and choose to express their views by unlawful means would be no ground for the Executive to review or revise a decision of the Tribunal.”
Therefore, when each film already goes through multiple checks (and for a movie like Udta Punjab, multiple cuts) by CBFC, an expert body, which ensures every criterion is met – there seems to be no need for the government to order re-examination, for it will only lead to delays and losses to the filmmakers, and by extension, the economy. The apex court, in the case of Prakash Jha Productions & Anr. v. Union of India & Ors. stated that the state governments cannot ban a film that has already been passed by CBFC. This not only established the CBFC as a competent authority but set a precedent as to how legislative bodies shall not intervene in the process of film certification and exhibition.
Coupled with the abolition of the FCAT and the new restrictive OTT regulations, the Bill points towards a regime with little to no space for public discourse and democratic dissent. It presents a gloomy picture where the filmmakers would either have to be pro-government or risk suffering substantial economic losses in the likely case of no certification. The bill may be deemed as an autocratic control over various art-based platforms. The provisions of the bill put up a question mark on the free will and choice of citizens and restricts filmmakers from exploring different nuances of filmmaking. It is feared that, if implemented, the review process would become political rather than professional, and the freedom to work on controversial topics would also become more restricted than ever. Even the vehement criticism that the new OTT rules received (which were termed to be “contrary to International Human Rights Law” by the United Nations Special Rapporteur) did not deter the government from rolling out this Bill. However, concern has only been voiced over the revisionary powers of the government; the remaining key provisions – penalization of piracy, grant of eternal certificates, and age-based certification – haven’t been criticized. Although these are well-thought amendments by the Government, the other criticized provision as mentioned above calls for a much deeper analysis and discussion.
The following measures could be taken by the government before implementing the proposed bill:
- Adopting measures to strengthen the CBFC, thereby enabling it to act as a complaint redressal body. The hue and cry following the abolition of the FCAT would also be addressed through this measure. As a consequence, it would shift the burden from the already over-burdened judicial institutions of our country.
- Holding discussions and meetings with the media and entertainment industry members to understand their grievances and, through that, deliberate on the provision regarding revisionary powers in the amendment.
- Creating a separate redressal body managed by the CBFC which would also act as a redressal mechanism for all media and OTT platforms.
- Delegating the work of addressing and appealing the problems of media and entertainment (M&E) to a nominated member of the Rajya Sabha, who can also formulate a committee to look further into strong-arming the redressal mechanism of the same.
The Ministry of Information and Broadcasting has asked for comments from the public on the draft bill before taking it to Parliament. A letter signed by 1,400 signatories from the media and film fraternity has been sent to the Ministry of Broadcast and Information Technology. Needless to say, these concerns are well-grounded and need quick redressal by the government.
(This post has been authored by Yash Bhatnagar and Prachi Jain. Yash and Prachi are first year law students at Dr. Ram Manohar Lohiya National Law University, Lucknow. Additionally, Yash also serves as a Content Editor at TCLF)