Modern Day Law for the Modern Indian Cinema ( Indian Cinematograph Bill, 2018 {Insights , Highlights, Proposals, Drawback, Analysis})

1st February, 2019 - 4:40 am Categories: Media & Entertainment Law 0 Comments

I write what I know, what I see. I just consider my stories a mirror, in which society can see itself.                                                                                                                                                                 ― Saadat Hasan Manto

Manto was Indo-Pakistani author who remained controversial throughout his life for his “so called” provocative, obscene stories. Society claimed that his stories are threatening anf horrifying, obscene, sexual and what not.

Modern cinema is also a mirror to the society, like stories of Manto. The Modern day Movies are not restricted to the  romance of the Golden Era, but it has revamped its frontiers to the truth and reality of the state be it about politics, state of women, and the taboos existing in the society or the actualities from which generally the leaders shrug off their responsibilities.

However the law governing the movies is still age old, In India there is no harm when one makes commercially viable movies with only songs and dance sequences, however, things contrastingly differ, moment one dares to speak out the truth in the society, expressing his opinion on any sensitive issues through movie.

One needs to understand, a film, show, novel or a book is a creation of art. An artist has his own freedom to convey what needs be in a way which isn’t denied in law and such restrictions are not perused by suggestion to crucify the rights of expressive mind. History of mankind records that there have been numerous creators who expressed their contemplations as indicated by the decision of their words, expressions, articulations and furthermore make characters which may appear to be totally different than a conventional man would think about. On similar plane a film can also be expressive and inciting the conscious or the sub-conscious musings of the watcher. If there be any impediment, it must be according to the resolution in law.

The Constitutional Angle

Under the Constitution of India, a film has a guarantee of protection under 19 (1) (a) and therefore a citizen has a right to exhibit films.[1] However it cannot be “absolutely” freely broadcasted in public due to its inherent ability to intrude and provoke feelings. Therefore, it is required to be regulated or censored by the state.[2] Article 19(2) lays down exceptions to the Freedom of speech and expression. These are exhaustive in nature and hence ought to be strictly construed[3] and hence censorship is permitted mainly under grounds specified under Article 19 (2) of the Constitution with emphasis on values and standards of society.[4] The courts have in a lot of precedents categorically upheld the freedom of artistic expression stating that, “Freedom of speech and expression admits of extremely narrow restraints in case of clear and imminent danger, therefore censorship should be based on precise statement of what may not be subject-matter of film making.

The Problem

Despite of a lot of precedents in favor of artistic expression, filmmakers in India still face criticism and their nationalism is questioned time and again. The reason behind is our age old law. Films in India are governed by Cinematograph Act 1952. Under the said law, government has a overriding control over the CBFC’s decisions. This power of the government have often been used against films. Owing to which films, these films have been facing cuts, mutes and bans sometimes to an extent that the film loses its essence, for the reasons that CBFC knows the best. “Fanney Khan”, “Lipstick under My Burkha“, “The Accidental PM” are few recent names that have borne the brunt recently.

Keeping in view this long tussle, a dialogue took place recently in the Lok Sabha that the Central Board of Film Certification (CBFC) should be a ‘certification’ body, not a ‘censorship’ body. It was also discussed that censors must make a considerable allowance in favor of freedom thus leaving a massive area for creative art to interpret life and society with some of its shortcomings along with what is good. A balance has to be hit and proper comprehensive guidelines needs to be formed for the body to follow so that it does not pass orders without proper justification.

History Behind The Bill

The draft of New Cinematograph Bill, 2010 was first introduced by Information and Broadcasting Ministry with a intent to bring change in system from film certification to a classification process that would enable filmmakers to reach out to target audience.

A committee for the same was formed to examine the issues related to certification under The Cinematograph Act, 1952. The committee was headed and governed by Justice Mukul Mudgal, Retired CJ, High Court of Punjab and Haryana. A report^[5] titled “Report of the Committee of Experts to Examine Issues of Certification under the Cinematograph Act, 1952” was published by the said committee on 28^th September 2013. The Report also had a proposed revised Cinematograph Bill, 2013 annexed to it.

Thereafter, another committee was instituted under the chairmanship of Mr. Shyam Benegal and report^[6] of the same was submitted on 26^th April 2016 to evolve broad guidelines/ procedures within the ambit of the Cinematograph Act, 1952 and Cinematograph (Certification) Rules, 1983 to provide a holistic interpretation of the provisions of the Cinematograph Act and Rules. From the time when the Shyam Benegal Committee Report submitted, there has been no progress on the amendment to the Cinematograph Act until the introduction of the 2018 Bill.

Insights Of The Present Bill

The present Cinematograph Act was enacted in the year 1952. Since then the Cinema has undergone a radical change , the technology used in film making and even the choices and beliefs of the viewers have undergone a drastic change over the time. Owing to which, there is a imminent need to bring modifications in the law which will regulate, certify and license facets of this ever fluctuating and innovative art form.[7]To strengthen the concept of artistic freedom and do away with outdated provisions impeding it, Shashi Tharoor, Congress MP introduced the Cinematograph (Amendment) Bill, 2018 in the Parliament.

The primary objective behind the Cinematograph Bill, 2018 is to safeguard the artistic freedom of the artists and film makers. The statement of Objects and reasons of the Cinematograph Bill, 2018 states that “the state may regulate artistic freedom only under the grounds enumerated under article 19(2) of the Constitution, not due to the disagreement with the content of the film.^[8]

Salient Features Of The 2018 Bill [9]:

The Cinematograph Bill, 2018 main aim is to curb the overriding power of the Central Government over CBFC, besides this there are several other changes which might prove to be in favor of the filmmakers. Some of the important features of the bill are:

1. Principles for Guidance in certifying Films

 Section 5B of the present Act deals with principles for guidance in certifying films, the Bill provides for introduction of provision 5(B)(2) which states that the Board shall exercise its power to certify a film for public exhibition in accordance with the guidelines mentioned in Schedule I.

2. Central governments revisional powers

The very perilous or the most critical amendment proposed in the bill is omission of Section 6 of the present act. Section 6[10] states that:

“The Central Government may of its own motion at any stage call for the record of any proceeding in relation to any film which is pending before or has been decided by the Board or the Tribunal and after enquiry may pass such order as it deems fit and the Board shall dispose of the matter in conformity with such order.”

Besides this , the Section also gives power to the Central Government to direct that a ‘certified film’ be considered to be an ‘uncertified film’  and on the basis of this they have the power to restrict the display of the film for a maximum of two months.

It can be said that with the omission of the above mentioned provision CBFC would have the sole authority in sanctioning films for the public exhibition and the Government should not have unbridled powers to suspend the exhibition of films.

3. Schedule I of the bill

Part I: Objective of the Guidelines

It aimed at ensuring that children and adults are protected from potentially harmful or otherwise unsuitable content; Audiences, particularly parents and those with responsibility for children, are empowered to make informed viewing decisions; Artistic expression and creative freedom are not unduly curbed in the process of classification of films; The process of certification by Board is responsive, at all times, to social change.

Part II:  Category of Certification of the films in

The following categories:

U- film suitable for all persons, regardless of age, and is often family friendly;

U/A 12+ – film suitable for persons above twelve years of age or for a person under the age of twelve with parental guidance;

U/A 15+ – film suitable for persons (adolescents) above fifteen years or for a person under the age of fifteen with parental guidance;

• film suitable for public exhibition, but restricted to adults;

C (A with Caution)- film restricted for adults with the specific purpose of cautioning them that it has more than a reasonable amount of content such as violence, sex, nudity, drugs and other related contents;

S-Film restricted to viewership by members of a profession or any class of persons, having regard to the nature, content and theme of the film.

Part III:  General Guidelines for classification of films

These rules give general variables which may impact an order choice at any dimension and regarding any issue viz.

Context: Context in which an issue is exhibited inside a film or video will be given thought

Theme: To consider the theme of a work, however will depend altogether on the treatment of that topic, and particularly the affectability of its introduction.

Tone and Impact: Film ought to be made a judged completely from the perspective of its overall effect.

Target Audience: The arrangement of the film will likewise rely on the intended crowd of the work and the effect of such work on such crowd.

Part IV

Categorization Guidelines based on the parameters of discrimination, Psychotropic Substances, Liquor, Smoking, Tobacco, imitable behaviour, language, nudity, sex, fear, threat and horror and violence.

Part V- Classification of a Film by Board

In respect of the censorship and limitation of the role of CBFC in certifying films, few important points have been proposed in the Bill:-

1. Applicant needs to mention the targeted audience and the classification required while submitting the final cut to the board. Board to inform the Applicant of the likely classification the work will receive and reasons for such decision based on the guidelines.
2. If the applicant is of the view that that the particular classification given by the CBFC is not fit then he shall have the freedom to give effective changes in the film and again submit the same to the board to get the desirable category.
3. If the Board think that the film do not meet the requirement to merit classification under any of the category, it can refuse to give the certification with reasons in writing for such decision. The Board shall not propose or make any cuts, revisions or modifications to the film to meet any of the classification categories.
4. Due opportunity of being heard to be given to the applicant before an order of refusal of certificate is given. Provided that the applicant shall be given a period of fifteen days, from the date of communication of reasons, to respond and submit his argument in favour of the classification sought.

Abbreviated Key Points

1. Remove the pre-censorship power of the CBFC
2. Restrict the Government’s capacity to suspend films
3. Provide classification of confirmation of the film into U, UA 12+, UA 15+, A, C-A, S classifications.
4. Provide criteria for classification.
5. Omission of Section 4(1) (iii) of the present act which empowers the CBFC to direct the applicant to carry out excisions and modifications in the Film as it deems fit before the sanction of the film. Likewise, it seeks omission of Section 5C (1) (e) which grants similar powers to the Film Certification Appellate Tribunal.
6. Section 4 (3) is inserted with the implementation of new bill which states that “No person apart from the Board shall sanction films for public exhibition”.

Regardless of its deficiencies, the 2018 Bill is by all accounts a positive development looking to correct a portion of the age old and obsolete arrangements of the 1952 Act. It is fascinating to get remarks from partners on their perspectives on the 2018 Bill and whether it has met desires.

Possible Drawbacks Of The Bill, 2018

Film is a creative expression of thoughts, stories and opinions, in some cases enlivened by reality occasionally set to music, intended to entrance, interest, or just to entertain the gathering of people. There are only few other modes of communication that can guarantee equal dimensions of unavoidable impact and nearness in our everyday lives. There are evidences in History that films have started off political discussion and compromised governments, proclaimed social change making society go astray from age old doctrine and furthermore real life lovers to their death in their misplaced hope of emulating the classic romances.

In light of the above, it is absolutely unsafe for a state to surrender free speech with no limitation. For this reason we must ask how this freedom can and ought to be granted to each person so as to be consistent with the stability of the state. If a speech, book, painting or film might provoke or lead to large scale violence, bloodshed and anarchy, thereby threatening the survival or integrity of the State, perhaps it should not be allowed to circulate freely. In today’s India, we believe our heroes to be absolutely perfect. One wonders of the question, whether this was always so? In ancient times, “Yudhishtir” and “Ram” were capable of deceit and divergent behavior and our ancestors were not surprised or angered to know. But now the situation is such that even on the mildest criticisms through cinema, book or play people get offended.

In a multi-religious society with a history of sectarian violence, artists and writers ought to show some sensitivity in depicting or describing religious icons. But one cannot honestly discuss the lives and legacies of real historical figures, it does not bode well for the health of our democracy. A big example of this was “Padmavat“, “Jodha Akbar” which brought in various troubles with them. The 2018 bill as above discussed seeks to omit many such sections which give overriding power to the government to interfere in CBFC’s decision but there is no doubt that too much liberty provided to the artists in some way or the other is going to be a chaotic decision.

Conclusion

This tussle of  what is satisfactory material for movie audiences is a repetitive topic in India. When a movie is offensive or unsuitable for public viewing. One wrong move by the film maker and public outrage is guaranteed. When such outrage achieves its crescendo the film is taken off from the film lobbies and that is the end of the story.

Digital platforms like Netflix, Amazon prime, Hotstar, Alt Balaji have come up as an alternative for the filmmakers to showcase their creative babies like Sacred Games Mirzapur and many, which they do not get in films due to censorship. However with the new Cinematograph Act coming into force, it can be foreseen that films will allow writer to write what they really want to write, to express out their creation..

If democracy is to prosper properly, screening of movies can never be denied for reasons dependent on minor speculation. Controlling exhibition of films for the sake of individuals and other comparable reasons is imprudent and is against freedom of expression rights

Literature and film in my opinion are like saloons where bottles have no labels. I want to taste each one myself and figure out which is what. If I’m denied this by labelling, then my entertainment is considerably lessened.”
― Saadat Hasan Manto

This saying by Manto is quite apt for present scenario. If it is left at the discretion of the government to interfere and decide which movie is best suitable for public exhibition and which is not then what people are supposed to do , there are huge chances of political propaganda over movie as a result of which it the viewer who is at loss.

The natural right, or ability to think freely and make his own judgments about any matter cannot be delegated. Therefore, government seeking control of minds of the people by showcasing what they prefer is against the Natural law theory.

The saying by George Orwell “If liberty is to mean anything at all, it means the right to tell people what they do not want to hear” suffice my view completely.

Author: Mr. Shubham Borkar, Senior Associate – Litigation and Business Development and Priya Rane– Intern, at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at shubham@khuranaandkhurana.com or at www.linkedin.com/in/shubhamborkar.

References:

[1]Odyssey Communication Pvt Ltd. v. LokvidhanSanghtan&Ors. 1988 3 SCC 410.

[2]S. Rangarajan v. P.Jagjivan Ram (1989) 2 SCC 574.

[3]Sakal Papers Pvt ltd. v. UOI (1962) SC 305.

[4]S. Rangarajan v. P.Jagjivan Ram (1989) 2 SCC 574.

[5]https://mib.gov.in/sites/default/files/Report_of_Expert_committee.pdf.

[6]

[7]https://mib.gov.in/sites/default/files/Report_of_Expert_committee.pdf

[8]https://www.medianama.com/wp-content/uploads/Cinematograph-amendment-bill-2018.pdf

[9]http://iprmentlaw.com/2018/08/09/the-cinematograph-amendment-bill-2018-salient-features/

[10]The Cinematograph Act, 1952.