A Battle of Creativity Vs. Control! Analysis of Cinematograph (Amendment) Bill, 2021

The Government of India has decided to amend Cinematograph Act 1952 (The Act). It has asked different stakeholders to give their feedback on the proposed amendment, Cinematograph Act Amendment Bill 2021 (Bill). This amendment has started tremendous debates in the industry. Why is the film industry so concerned with this amendment? How is the amendment going to impact screenwriters and filmmakers? What should be the suggestions to the Government regarding the amendment? Are you facing these queries? Or, are you at least curious about this issue? Do you want to know in detail regarding this ongoing debate of 'creativity vs. control'? We have brought you this (slightly longer!) article to give you a critical analysis of the proposed amendment and suggestions for the way forward. If you are a person associated with the creative industry, it is a must-read for you. Bookmark it for weekend reading if currently you have another more important task to do! Do come back to it as it is directly impacting you! In the successive paragraphs, I am going to explain the concerns and the suggestions for fairer and inclusive amendment in the Act. I shall be limiting the scope of this Article only to the amendment proposed in respect to Section 6 of the Act.

No doubt there are few welcome changes proposed in the Bill to curtail piracy, to introduce age-based sub-categories of U/A certification, provisions to prohibit and penalize unauthorized recording or transmission of a copy of a film during its exhibition. However, the creative community is particularly concerned about the excessive revisional power granted to the Central Government in the Bill that shall lead to multiple censorships and hence may unreasonably curtail the freedom of speech and expression of the screenwriters and filmmakers as guaranteed under Article-19 of the constitution. Further, I think that the Bill in its current form is missing a golden opportunity to reform the Central Board of Film Certification (CBFC) as recommended by Justice Mudgal Committee & Shyam Benegal Committee.

Before we address the specific concerns with the proposed amendment in Section 6 of the Act under Bill, I would like to make you aware of the history of censorship in India. The British Government had first introduced Cinematograph Act in 1918 to exert control over the colonies. The Act was premised on the perception that Indian masses were illiterate, unruly, and prone to be incited into passion by the influence of cinema. Today in 2021, we are one of the leading film industries in the world. In free India, our Screenwriters dared to write path-breaking scripts on various social, economic, and political issues. Our filmmakers compete with Hollywood to produce high-quality cinemas that receive global acclamation. However, our censorship laws continue to view the audiences and content creators through a paternalistic lens exerting tight control over our cinematic practices. Cinematograph Act, 1952 (The Act) has failed to keep pace with the technological changes in filmmaking and exhibition, the choices and beliefs of the viewers, and also the contemporary standards of society, that have undergone a radical change ever since its enactment. It is a sad truth that even today our films are highly censored.

The creative industry as an industry also needs fewer regulations so that it can receive an edge to flourish. Hence, an amendment to the Act is the need to the hour. However, the aim of the amendment should be to promote artistic expression and creative freedom and to empower the audience to make informed viewing choices. Further, the certification process should be responsive to rapid social change. In the last 12 years, there have been two prominent committees formed by the Government in the years 2013 and 2016, under the Chairmanship of Justice Mukul Mudgal (“Justice Mudgal Committee”) and Mr. Shyam Benegal (“Shyam Benegal Committee”), respectively and the resulting bills namely, the Cinematograph (Amendment) Bill, 2013 and the Cinematograph (Amendment) Bill, 2018. Both Committees have made progressive recommendations to upgrade the certification process of our country and bring it in line with the changing attitudes, needs, and demands of the 21st century. None of the committees supported excessive executive intervention. Unfortunately, the core recommendations of these committees have never been implemented. The Bill in the current form further curtails the artistic and creative liberties of screenwriters, filmmakers, and other creative individuals in the film industry. Therefore, there are widespread concerns in the creative industry. Several representations and open letters have been sent to the government.

The Bill seeks to bring about the following two amendments in sub-section (1) of Section 6 of the Act:

(a) The Hon’ble High Court of Karnataka in K.M. Shankarappa vs. Union of India, ILR 1990 Karnataka 4082, struck down as unconstitutional revisional powers of the Central Government as set out in subsection (1) of Section 6 in respect of films that have already been certified by the CBFC. The Court holds that that such revisional powers of the Central Government can only be in respect of films that are pending certification before the CBFC. This decision of the Hon’ble High Court of Karnataka has been upheld by the Hon’ble Supreme Court in vide judgment dated 28/11/2000 in Civil Appeal 3106 of 1991. The Hon’ble Supreme Court also observed that;

‘To permit the Executive to review and/or revise that decision would amount to interference with the exercise of judicial functions by a quasi-judicial Board………… Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution.’

As the provision was struck down by the Apex Court over 20 years ago, the Bill now seeks to remove the same from the Act. The Bill entitles the Central Government to call for records of any proceedings pending before the CBFC. The Central Government can direct the CBFC to dispose of the matter in accordance with its order. Please note that Section 6 in its entirety was proposed to be deleted from the Act vide the Cinematograph (Amendment) Bill, 2018. This recommendation was made in light of the recommendations of the Shyam Benegal Committee and judicial precedents. The introduction of the Bill states that it has taken into account the observations and recommendations made by the Shyam Benegal Committee 2016. However, in practicality, it goes against the core recommendation of the committee.

(b) The Bill proposes to add a proviso to sub-section (1) of Section 6 of the Act empowering the Central Government to direct the CBFC to re-examine a film that has already been certified for public exhibition. The Central government can exercise this right if it has received any references or if it considers necessary so to do, on account of violation of Section 5B (1) of the Act. The reason given by the Government in the Bill is Section 5B (1) is derived from Article 19(2) of the Constitution and is non-negotiable.

We can understand and appreciate the reasonable restrictions set out under Article 19(2) as reproduced in Section 5B (1) of the Act. However, it is crucial to note here that under Section 5B (1) of the Act, CBFC already has the power to refuse certification of a film for public exhibition, if, in its opinion, the film violates the reasonable restrictions in curtailment of freedom of speech and expression as per Section 5B (1). CBFC is empowered to implement the Act. CBFC only certifies a film for public exhibition if same the same is not in conflict with Section 5B (1). Hence subjecting a film to double/multiple censorships of the executive body is detrimental and curtails the creative expression of creators. As the Hon’ble Supreme Court in Union of India vs. K.M. Shankarappa, held that;

‘… At the highest, the Government may apply to the Tribunal itself for a review, if circumstances so warrant. But the Government would be bound by the ultimate decision of the Tribunal………………. Once an Expert Body has considered the impact of the film on the public and has 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 the law and order are maintained. In any democratic society, there are bound to be divergent views. Merely because a small section of the society has a different view, from that as 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. In such a case, the clear duty of the Government is to ensure that law and order are maintained by taking appropriate actions against persons who choose to breach the law.’

The Apex Court in a plethora of judgments has categorically maintained this position. In the case of S. Rangarajan and Ors. Vs. P. Jagjevan Ram and Ors (1989) 2SCC574, the state of Tamil Nadu had banned a film that was certified by CBFC. The Honorable Court held such ban illegal and infringing the fundamental rights granted by Section 19 (1) of the Constitution. We are reproducing the relevant paragraphs of the judgment for your ready reference;

48.We are amused yet troubled by the stand taken by the State Government with regard to the film which has received the National Award. We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(1), freedom of expression cannot be suppressed on account of threats of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.

50. Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of Government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself.”

It is pertinent to note that Section 6(1) of the Act already empowers the Central Government to call for a recording of any proceedings of any film pending certification before the Board and direct the Board to adhere to its order with respect to certification of such a film. The Central Government also under Section 5E of the Act has the power to suspend or revoke the certification of any film. Hence, adding this new proviso via Bill shall result in multiple censors as we already have a system to implement the reasonable restrictions. At this stage, it is imperative to note that that the Mudgal Committee report considered even the power of suspension of films, recognized in Section 6(2) of the Cinematograph Act, to be an unnecessary part of the certification process. It proposed to revise Section 6 of the Act to make it a legally and constitutionally sound version as per the judicial precedents set by the Honorable Supreme Court. The Committee recognizes the right of suspension only as a means of last resort, and only when there has been or there is likely to be an imminent breach of public order as per the parameters explained by the Honorable Supreme Court in various judgments. A similar principle applies to the provision that gives more expansive power to the Central Government to reopen the question of certification already granted by an autonomous body. Hence, the Government should abide by the spirit of K.M. Shankarappa's judgment that once a film has been certified after complying with the requirements under the Act, there should not be any further interference. This insertion of the proviso in Section 6(1) of the Cinematograph should be dropped.

Further, this amendment is a golden opportunity to have a clear-cut guideline that CBFC should follow while certifying a film that should be par with the fundamental right granted under Article 19 (1) of the Constitution. There is the requirement of reform in the process of selecting the members of CBFC. These members must include retired Supreme Court Judge/High Court Judge, legal luminary, and person having rich experience (more than 15 years) in the creative industry. In such case, members shall be capable to understand the nuances of art and legal precedents set of our judiciary. This has been referred to in the case of K.A. Abbas vs Union of India to amend the Act. In the K.A. Abbas case, the Court held that;

‘Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favor of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good……….The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal form and the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman’s legs in everything, it cannot be helped.’

Photo: The Creation of Adam, a fresco painting by Italian artist Michelangelo

I want to conclude this Article and my suggestions by placing a reference to the book ‘The Hindu View of Life’ written by Dr. Sarvepalli Radhakrishnan, (the former President of India). The Book asserts that Indian civilization is based on assimilation rather than on extermination. The former is the hallmark of Indian civilization, the latter, of Western civilization. Indeed, the Constitution of India is wedded to the concept of pluralism and inclusiveness. But extra-constitutional bans restrict the free flow of thoughts, imagination, of creativity. Such bans are thus against the constitutional philosophy, against the rule of law, against democracy, and our national interest.

We hope Government considers the anxiety and the position of the stakeholder before finalizing the Amendment. It must come up with an amendment that does not curtail creative freedom and promote creative expression. It should reform the CBFC so that we can have a fair censorship body that can strike a balance between two conflicting issues namely creativity and control!

Source Reference: Romika Chawla, CONTROLLING PIRACY OR EXPRESSION? – AN ANALYSIS OF THE CINEMATOGRAPH (AMENDMENT) BILL, 2021, https://iprmentlaw.com/2021/07/01/controlling-piracy-or-expression-an-analysis-of-the-cinematograph-amendment-bill-2021/ (Referred on 3rd July 2021)