Various renowned personalities in the film industry have recently written an open letter voicing their opposition to the proposed amendments to the Cinematograph Act for which the government has invited public comments. The film community is primarily aggrieved by an amendment which will allow the Union government to direct the chairman of the Central Board of Film Certification (CBFC) to re-examine a film once it has been certified for public exhibition if it receives any references or complaints on the ground of violation of Section 5(B) (1) of the Act.
But is there merit in the concerns expressed by the film community?
The Cinematograph Act, 1952 has been through several amendments over the years. It was sought to be amended recently in 2019. This 2019 Bill primarily dealt with the issue of piracy and proposed inserting Section 6AA in the Act, which prohibited using any audio-visual recording device in a place to knowingly make or transmit or attempt to make or transmit or abet the making or transmission of a copy of the film or any part without the written authorisation of the author.
The Bill also proposed to insert sub-section (1A) in Section 7 which would make the contravention of Section 6AA an offence entailing imprisonment which may extend up to three years or with a fine which may extend to Rs 10 lakh or both.
The Bill was referred to a standing committee, and the standing committee on information technology tendered its report in March 2020. The committee recorded detailed evidence of various stakeholders. The committee was mainly concerned with the issue of piracy causing serious financial harm to the film industry in India. It was not concerned with the issue of film certification, since the secretary of the I&B ministry suggested segregating the issues and assured the committee that the latter would be dealt with separately. The committee suggested prescribing a minimum punishment for the offence of piracy to provide some deterrence. It also suggested defining the term ‘knowingly’ to prevent misapplication of the law.
With this background, let us examine the amendments proposed to the Cinematograph Act in 2021 for which public comments have been invited.
What the government wants to do
The release by the Ministry of Information and Broadcasting notes the report of the standing committee and the Mudgal and Benegal committee on the issues of piracy and certification and suggests sub-dividing the U/A category to U/A 7+, U/A 13+ and U/A 16+
Section 5A(3) is proposed to be amended to remove the 10-year validity which has already been removed by executive orders.
The government has suggested amending Section 6(1) which gave it revisional powers. According to the government, sometimes complaints are received claiming that films which have been already certified violate Section 5(B)(1) of the Act which necessitates an amendment in the Act. Section 6 on the whole provided revisional powers to the Union government allowing it to call for the record of any proceeding which is pending before, or has been decided by the Board. It can do so of its own motion and at any stage. Section 6(1) was struck down as unconstitutional by the Karnataka high court in the case of K.M. Shankarappa v Union of India (1990) and the decision was upheld by the Supreme Court of India in the case of Union of India v K.M. Shankarappa (2001).
Briefly, the Supreme Court of India held Section 6(1) of the Act to be unconstitutional. According to the court, once the government chose to establish a quasi-judicial board/body, and the body took a decision and certified the film for public exhibition, the executive could not sit in appeal over it. The court held Section 6(1) to be a travesty of the rule of law and contrary to the basic structure of the constitution. The court held that the executive could nullify or overrule a judicial or executive decision by enacting the appropriate legislation but they could not set at naught a judicial order without enacting an appropriate legislation. The court also negatived the contention that there would be a law and order problem, and held that once an expert body has cleared the film, it is for the respective state government to maintain law and order.
The government has now suggested removing the provisions in Section 6(1) of the Act which were struck down by the Supreme Court and adding a proviso to Section 6(1) for granting revisionary powers to the government on account of violation of Section 5B(1) of the Act. The suggested amendment will empower the Union government in respect of a film certified for public exhibition, on receipt of any references, to direct the chairman of the board to re-examine the film if it feels necessary.
The government has also suggested adding Section 6AA, which is targeted against piracy and has accepted the views of the standing committee and prescribed a minimum punishment of three months but which can extend to three years. On the aspect of fine, the government has suggested a minimum of Rs 3 lakh but removed the 10-lakh cap and suggested that it may extend up to 5% of the audited gross production cost or with both.
Legacy of the K.A. Abbas case
The Cinematograph Act, 1952 in its very nature, is an unfriendly legislation for filmmakers in India. The Supreme Court in K.A. Abbas (1970) held that censorship in India and pre-censorship has full justification in the field of exhibition of cinema films. Consequently, filmmakers have to apply for certification to a Board which is currently more in the nature of a Censor Board which instead of certification, often suggests cuts and modifications without which it refuses to certify films.
The amendment inserted in the Act in 1983 allowed for the setting up of a Film Appellate Tribunal. This Tribunal was established pursuant to the decision of a five-judge constitution bench of the Supreme Court in K.A. Abbas. In this case, the petitioner challenged deletions ordered by the Central Board of Film Censors in his film A Tale of Four Cities; he was aggrieved because his film did not receive a ‘U’ certificate by the Board. Ultimately, he appealed to the Union government which granted him a “U’ certificate with certain cuts.
At the time of hearing, it was submitted that the government had decided to grant the ‘U’ certificate without any cuts and the petition was amended suitably to challenge pre-censorship itself. The petitioner also contended that if there is pre-censorship it must be based on definite principles which leave no room for arbitrary action; there must be a reasonable time limit fixed by the authorities for censoring films; and lastly, the appeal should lie to a court or to an independent tribunal and not the Union government.
The solicitor general at the time assured the court that government would effectuate legislation which would ensure there is a reasonable time limit for censorship and that the appeal would lie to a court or an independent tribunal. The court expressed its satisfaction that it is better if the government ceases to perform crucial functions through one of its secretaries in the sensitive field involving the fundamental right of free speech and expression.
The Film Appellate Tribunal now stands abolished by virtue of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021 which substituted the word ‘Tribunal’ used in the Act with ‘the high court’. Consequently, the only remedy against the decision of the CBFC ordering cuts or refusing to sanction a film for exhibition is the high court.
This is still in conformity with the decision in K.A. Abbas as the commitment was to provide an appeal to either a court or an independent Tribunal. However, the spirit of the judgment which can be gauged is that the Union government should minimise its involvement in the process of film certification and leave this to expert bodies.
The long arm of government
Section 6(1) which grants revisional powers is only one of the provisions which gives the Union government powers. Section 5E allows it to suspend or revoke a certificate once granted under certain circumstances. Section 13 provides the Union government or local authority the power to suspend exhibition of the film if it feels that it can cause a breach of peace in a particular area.
Therefore, a Damocles’ sword is always hanging over a filmmaker’s head – first he has to make a film, then he has to hope that the CBFC certifies his film without suggesting any major cuts or modifications. The Union government has passed detailed guidelines under Section 5(B)(2) which virtually handicap the ability of filmmakers to express themselves freely and convey that message to viewers. However, even after a certificate is granted, the Union government can suspend or revoke the certificate or suspend the exhibition of the film on the ground of the possibility of the film disturbing peace in the area. Now. after all these caveats, another layer of worry and anxiety is proposed to be added in 2021.
With the proposed amendment, after a film has been certified for exhibition by the Board, with or without cuts, if the Union government receives a complaint or reference as to a violation of Section 5(B)(1), it may, if it thinks fit, refer the matter back to the chairman of the Board to re-examine the film.
Section 5B pertains to the principles of guidance in certifying films. It allows the competent authority to refuse to certify a film if the film or any part of it is found to be against the sovereignty and integrity of India, 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 offence.
There are two ways to view this suggested amendment. One is that it will harass the filmmaker who has spent a huge amount of time and resources making the film and then finally getting it approved and will leave her open to financial ruin. The other way to look at it is that the Union government is not going to sit in appeal over the Board; it will only ask the Board to re-examine whether the film deserves certification on the basis of complaints it receives. Essentially this is asking the same Board which has granted certification to review its decision.
The problem lies in section 5(B)(1) itself, which is a reproduction of Article 19(2) of the Constitution. Who decides what is against the sovereignty and integrity of India, against friendly relations with foreign states or against public order, decency or morality, or is defamatory? These are all general and subjective notions and it is to be assumed that the Board which is guided by guidelines framed by the Union government itself would take all the relevant factors into account while certifying a film. Which begs the question – why does the Union government want to get involved and try to refer the matter back to the Board, if the Board has already certified the film? Section 5(B)(1) as it stands allows for censoring of divergent views depending upon the prevailing views of members of the CBFC. Bodily lifting the categories enumerated by Article 19(2) and making them guidelines for certifying films leads to the possibility of arbitrariness seeping in.
A two-judge bench of the Supreme Court in the case of Indibily Creative Private Limited & others v Government of West Bengal & others (2019) awarded compensation of Rs 20 lakh to the makers of the film Bhobishyote Bhoot for the pulling off of their film from screens in West Bengal despite the CBFC having certified it. The court stressed upon the importance of the freedom of speech and the necessity to be accommodative of diverse viewpoints. The court observed that under the provisions of the Cinematograph Act, 1952, the CBFC is the statutory authority to certify a film for public exhibition.
The court noted section 5(B)(1) which contains the principles for guidance in certifying films and the provisions of the State Act and section 13 of the Cinematograph Act which allows for the suspension of films. The court held that these provisions are subject to statutory control or the supervisory jurisdiction of the high court under Article 226 of the Constitution or of the Supreme Court under Article 32 of the Constitution. The court emphasised that such provisions have to be interpreted within the rule of law framework to prevent arbitrary state action. The court also expressed concern at the growing intolerance against the expression of different views.
Most importantly, the court observed that a producer of a film which has been certified by the CBFC needs to embark upon meticulous arrangements including contracts for the exhibition of the film and that the wielding of extra-constitutional authority is destructive of legitimate expectations. According to the court, restrictions can only be imposed under a law which is made by the state. In the instant case, the state of West Bengal informed the court that it had not taken recourse to its statutory powers either under the state or Union legislation. The court therefore deprecated the West Bengal police for overreaching their statutory powers and becoming instruments in a concerted attempt to silence speech, suborn views critical of prevailing cultures and threatening law-abiding citizens into submission.
The question which therefore needs to be asked of the government is whether it is reasonable to subject film producers, who have to make meticulous arrangements and arrange contracts, to the anxiety that despite having the necessary approvals, their film can still have its certification suspended or revoked or its exhibition suspended by either the Union government or the local authority. A legitimate expectation is formed in the mind of filmmakers and producers once approval is granted and it is not reasonable to have uncertainty about the fate of a film once sanctioned for exhibition.
The proposed amendment to the Act allowing the Union government to refer a film back to the Board comes as a surprise considering there was no indication of this in the 2019 Bill, nor in proceedings before the Standing Committee on information Technology. Up until 2020 it was mainly the malaise of piracy which was sought to be dealt with to aid the film industry.
The absurdity of this amendment can be highlighted by way of what it makes possible: The Supreme Court delivers judgment; if a party is aggrieved, they can ask the court to review its decision which can either be accepted or rejected by the court. Now, the Union government wants to enable any Tom, Dick or Harry who watches a movie to make complaints to it and the Union may in its discretion decide to ask the Board to review its decision. Section 6(1) was struck down as unconstitutional in K.M. Shankarappa with the caveat that the government could introduce an appropriate legislation if it wanted to set at naught a judicial order. This is not that appropriate legislation and is neither here nor there since it ostensibly does not want to set at naught a judicial or executive order but only ask the quasi-judicial body to review its decision. This is a colourable exercise of power.
The proposed amendments do not accept all the suggestions of the Standing Committee and modify others. For instance, the word ‘knowingly’ is still not defined, the minimum fine is Rs 3 lakh going up to 5% of the audited Gross Production Cost or with both. The proposed amendments have provided a minimum punishment of three months which was not present in the 2019 amendment bill which was presented before the Rajya Sabha but not passed.
The Supreme Court in K.A. Abbas and K.M. Shankarappa also observed that the Union government should minimise its involvement in this field. For that to happen, other provisions in the Act such as Section 5E and Section 13 must also be reconsidered. In fact, Section 13 is rendered otiose in view of the findings of the Supreme Court in K.M. Shankarappa that disturbance of law and order is no excuse and once a film has been certified for exhibition, it is the duty of the state government to maintain it.
In conclusion, the Union government must minimise its involvement in the field of cinema considering its sensitive nature. There are already enough checks and balances in place in the form of guidelines framed by the Union and considered by the CBFC. There cannot be a perpetual fear in the mind of a filmmaker that his film, even after being sanctioned for exhibition, can be suddenly pulled off the screen because someone doesn’t like what they see in it.
It is one thing to introduce provisions to combat piracy, but it is quite another to try to put your foot in a door which should have been shut long ago. The government will be well advised to keep its role in film certification to the minimum and reconsider introducing this amendment. There is of course the larger issue of debate – do film certification and censorship have a place in a democratic society committed to freedom of expression, where the existence of diverse viewpoints is a given and must be tolerated?
Raghav Tankha is a lawyer practising in Delhi.