CENSORSHIP AND CINEMATOGRAPH AMENDMENT BILL, 2021: AN ANALYSIS (By- Harkishan K P)
CENSORSHIP AND CINEMATOGRAPH
AMENDMENT BILL, 2021: AN ANALYSIS
Authored By:
Harkishan K P
School Of Law Christ University
Abstract
One of the most sacred rights granted by the Indian
Constitution is freedom of speech and expression. It is also considered an
essential idea in most modern democracies around the world. Cinema is a means
of expressing one's thoughts, ideas, and opinions, and it is protected under
Article 19(1)(a) of the Indian Constitution. However, the same reasonable
constraints that apply to Article 19(1)(a) can be applied to the method of expression
– cinema. The Cinematograph Act outlines the restrictions on cinema, including
all certification guidelines as well as provisions to avoid arbitrariness. The Cinematograph Act regulates cinema in
India, and the Act establishes a regulatory agency called the Central Board of
Film Certification, whose primary responsibility is to certify films for public
screening. Thus, a set of rules and regulations can be said to have been
established, but arbitrariness and impartiality continue to reign, and the court
serves as a legal protector to defend the rule of law and give justice. This
paper seeks to analyse the amendments which are proposed to the existing
Cinematograph Amendment Act and whether it curbs the fundamental right to
freedom of speech and expression enshrined in the constitution.
Introduction
India was given the film censorship mechanism which was
forced by the British in 1920. In any case, the raison d'etre of the censorship
apparatus was totally redesigned to suit the new rulers. Also, it says a lot
about their mobility.[1] In 1950,
the Right to Freedom of Speech and Expression (I.e, Art 19(l)(a)) was enshrined
in the new Constitution of India as one of a few Fundamental Rights accessible
to the Indian citizen. Special cases were anyway allowed under Art 19(2), which
read: Nothing in sub-provision (a) of clause (1) will impact the activity of
any current regulation to the extent that it relates with, or keeps the state
from making any regulation relating to , libel, slander, defamation, contempt
of court or any matter which outrages the moral or ethical quality or which
sabotages the security of, or will in general defeat, the state. In this manner
establishment of regulation with chief powers to manage the media was
admissible, provided that they restrict their exercise of those powers to
grounds which are mentioned under Art 19(2). [2]
Against this backdrop, throughout the 1950s, there was a
flurry of litigation, particularly involving the press (both books and
newspapers) and dramatic performances. In the immediate aftermath of
independence, the Indian judiciary was inclined to believe that any statute or
provision not compatible with the Constitution's specific intentions or
directions would be declared null and void. It followed its duty not only when
the offending act stated authorised limits outside of Art 19(2), but also when
it was silent but may be understood that way if read literally[3] [4] [5]. The state
quickly evaded the original Art 19(2) by introducing the Constitution (First
Amendment) Act 1951, seeing this as a threat to future schemes. It allowed
'censorship' statutes to be passed, giving executive branch officials the power
to impose restrictions' on the press (and other forms of expression) "in
the interests of state security, friendly relations with foreign states, public
order, decency, morality, or in relation to contempt of court, defamation, or
incitement to an offence."
The 14th Constitutional Amendment, passed in 1963,
established a new rationale for imposing "reasonable restrictions" on
freedom of speech and expression in the shape of India's sovereignty and
integrity. The breadth of the stated fields of exception was thus extended,
both in terms of phrasing and scope. The changes also added that the limits should
be ‘reasonable' both ‘substantively’ and procedurally' to counteract this
expansion of the restrictive powers. The specific aims or instructions of the
Constitution served as the foundation for reasonableness.
The judiciary have focused on two other key consequences of
the reasonableness requirement:
-To overturn statutes that, under Art 19(2), did not provide
for an appeal against executive directives.[6]
-To overturn executive directives that did not specify why
something was prohibited[7] .
However, there were some conservative judgements as well:
- Incitement or solicitation to commit violent crimes such
as murder was deemed to jeopardise state security and fall under the purview of
a statute sanctioned by Art 19(2).[8]
- In general, courts have refused to assess the gravity of
any disputed scenario. The government's judgement and discretion were to be
used in determining when and to what degree restrictions should be applied [9].
The press was able to break free from the clutches of
censorship as a result of these lawsuits, as well as its growing political
clout. Despite its lack of political appeal, the stage was also exempt from
censorship provisions, owing to the fact that the Dramatic Performances Act of
1876 had far too many loopholes to be considered "constitutionally"
tenable, such as a lack of clarity regarding directives and insufficient
provisions for appeal against censorship decisions. However, films Remained
Susceptible Due To Its Lack Of Prestige And Weight. [10]
Freedom
Of Speech And Expression
Article 19(1) (a) of the Indian Constitution guarantees
freedom of speech and expression. This liberty includes the ability to openly
express one's beliefs or thoughts through speech, writing, printing, or any
other means. Because public education, which is so important for the effective
functioning of a popular government, is impossible without free public
discussion, freedom of speech and expression is the foundation of democracy. In
a democratic democracy, media freedom is essential to an individual's
existence; the media is one of the most important foundations of a free society
and a tool for social and political change. Unlike the United States
Constitution, which clearly states 'press liberty,' that is, the freedom to
publish whatever one wants without prior authorization, the Indian Constitution
does not include the word "freedom of the press." [11]
However, freedom of expression is inextricably linked to the
right to spread ideas, the latter of which is guaranteed by the press's freedom
of publishing and circulation. Furthermore, the press is only another form of
expression for the individual or citizen. Editors and managers of newspapers
are all citizens, and when they write in newspapers, they are expressing their
right to free expression. The right to freedom of speech and expression in
India, thus, includes the right to freedom of the press as well. Individual and
media freedom of speech and expression does not, however, guarantee an absolute
right to talk or distribute whatever one likes without repercussions, nor does
it grant unrestrained or unbridled immunity to every imaginable use of
language, and to prevent those who misuse this freedom from being punished.
Unlike the United States Constitution, which states that "Congress shall
make no law... abridging the freedom of speech," the Indian Constitution's
article 19(2) attempts to strike a balance between individual liberty and state
control, authorising the state to impose certain restrictions on speech. [12]
The
Cinematograph Amendment Act Of 1952
The Act empowers the central government to issue rules that
specify, among other things, the exact number of members of the board, the
procedure for examining and certifying films, the appointment of subordinate
boards and officers, the conditions that may be imposed on a film certificate,
and the procedure for appealing a censor board decision. The government
produced a set of rules in 1958 as a result of these enabling laws, outlining
the institutional organisation and operation of India's film censorship boards
in some detail. A Central Board of Film
Censors was established under the rules, with a full-time chairperson and six
other members nominated by the central government. This Board, based in Bombay, is responsible
for submitting annual reports on its activities to the central government, as
well as directing and reviewing the work of subordinate regional boards, which
are responsible for the actual censorship process Each of the cities of Bombay,
Calcutta, and Madras has a regional and deputy regional officer. Both the
Cinematograph Act and the Censorship Rules call for the appointment of advisory
panels in each of the above regional centres, consisting of an unspecified
number of people "qualified in the opinion of the Central Government to judge
the effect of films on the public," to assist in the examination and
certification of films. [13]
When a regional officer receives an application to certify a
film for public exhibition, he or she must appoint an examining committee to
see the film and recommend a certification.
The examining committee for newsreels, documentaries, cartoons, and
educational films consists of one member from the advisory panel and the
regional or assistant regional officer; however, the committee for any other
film consists of four members from the advisory panel and the regional or
assistant regional officer.
The members of the examining committee meet immediately
after viewing the film in question to discuss whether the film should be given
a "U" (suitable for unrestricted public exhibition) or "A"
(suitable for public exhibition restricted to adults) or no certificate, or
whether a "U" or "A" certificate could be given if certain
portions of the film were removed. The rules demand that the committee members'
opinions on the suggested certification be documented, but the committee's
actual deliberations are never recorded. Furthermore, the applicant is barred
from both the film's screening and the committee's subsequent deliberations.
Following the general discussion, the regional officer tells
the applicant in writing of the committee's "tentative" conclusions;
if the applicant is dissatisfied with this conclusion (typically a
"A" verdict), he may request an informal hearing with the committee
to discuss his viewpoint. The
deliberations of this informal conference are once again undocumented. The chairman of the Central Board of Film
Censors then sends a copy of the committee's final judgement and each member's
vote to the regional officer, who then directs the regional officer to certify
the film on behalf of the board as "U" or "A" as the case
may be.
If the applicant objects to the examining committee's
conclusion or the chairman of the Central Board wishes to re-examine the film,
the latter can refer the film and the administrative decision to a revising
committee, which will consist of the chairman and all resident members of the
advisory panel of the location where the application was received. After that, the revising committee
reviews the film in the same way as the examining committee
did. The revising committee's
conclusion is decided by a majority vote, and a certificate is issued in
accordance with it. If the applicant is
dissatisfied with the revising committee's decision, he or she has the right to
appeal to the central government. [14]
Cinematograph
Amendment Bill of 2021
The Ministry of Information and Broadcasting submitted the
Cinematograph (Amendment) Bill 2021 to make the process of analysing films more
efficient and to combat piracy, which is a danger to the film industry. The
following are some of the important amendments that are suggested:
?
Subdividing
'unrestricted public exhibition' certification into three age categories: U/A
7+, U/A 13 +, and U/A 16+.
?
It
is proposed in the amendment bill to abolish the limitation on certificate
validity and to give certificates that are valid in perpetuity.
?
The
Amendment Bill proposes to add a clause to Section 6 subsection (1), which
deals with the central government's revisionary powers. It has been recommended
that the Central government has the ability to order the CBFC to re-examine any
film that has been certified by the board for public exhibition and that the
Central government believes violates the principles outlined in Section 5B.
?
Unauthorised
recording of a copy of a film or any part of a film is prohibited under Section
6AA of the Amendment bill.
?
The
bill also wants to add sub-section 1A to Section 7 to make it possible to
punish or imprison anyone who violate Section 6AA (or both)[15]
However the new bill has attracted criticism from almost all
corners of the film industry regarding various aspects of the cinematograph
amendment bill of 2021. A certificate issued by the CBFC is valid for ten years
under current law. They have extended this period indefinitely under the 2021
Bill. Although the intent for making the certification permanent is unclear, it
should be noted that a perpetual validity period was also proposed by a
notification issued by the Ministry of I&B in 1984, in which the Ministry
exempted validation and revalidation of certificates, resulting in perpetual
validation.
The allocation of revisionary powers to the Central
Government to direct the CBFC to re-examine an already examined (and so
certified) film is the most contentious element in the 2021 Bill. As a result,
the Central Government will be able to overturn the CBFC's ruling. Despite the
fact that Indian courts have been against the Central Government's revisionary
powers, the Supreme Court has stated that the Government can overturn or annul
such judicial rulings by adopting suitable laws. According to the 2021 Bill,
this amendment stems from the Constitution of India's reasonable restrictions,
which state that films may not be approved in the interests of India's
sovereignty and integrity, security, friendly relations with foreign states,
public order, decency, or morality, or in
relation to contempt of court, defamation, or incitement of
any offence. However, in recent years, a considerable number of films have been
banned from public viewing for no apparent cause (despite being challenged in
court under Article 19(2) of the Indian Constitution).
On the other hand, given the growing popularity of
Over-The-Top (OTT) platforms that broadcast movies, any prohibition against
viewing a film in theatres may not have a significant impact, since viewers or
the "public" may be able to watch the 'banned' film on any of the OTT
platforms. It is vital to note that the COVID pandemic has resulted in the closure
of movie theatres across the country, as well as a significant shift towards
OTT platforms—to the point where a return to movie theatres will take some
time. It's also worth noting that no significant regulatory-backed procedures
for OTT platforms have been developed. However, if restrictions for the
operation of OTT channels are enacted in the near future, it may represent a
problem for different stakeholders in the entertainment sector (including,
among others, the makers of the disputed film) as well as the general public.
This could lead to some issues with India's portrayal of
films on the international stage, especially in recent years, when films that
were 'banned' in India have appeared to perform at least as well as
international standards, if not better, and have received acclaim from a number
of international film festivals. What's worse for the entertainment sector is
that this decision comes just a few months after the Picture Certification
Appellate Tribunal (FCAT) was abolished, which was the stakeholders' last line
of defence if the CBFC refused to certify their film. As a result, any appeal
will be sent to the High Courts or the Supreme Court, which many stakeholders
will be unable to afford. As a result, the proposed inclusion of this provision
raises the question of its significance at the ground level, as on the one
hand, it will have little impact on public viewing if the same is broadcast on
other platforms, and on the other hand, even if the Government imposes
stringent regulations on OTT platforms, the Indian entertainment industry will
face a massive pushback on good content delivery, loss of business, loss of
international acclaim, and so on.
Conclusion
This old censorship regime, introduced during the British
era and changed considerably after independence, is itself an antiquated
concept in this day of social media and OTT platforms. The appeal tribunal
provided filmmakers with a way to challenge Central Board of Film Certification
orders and reason with reasonable appellate members, who frequently approved
films and reduced the number of cuts. These current efforts appear to be an
attempt to ensure that no films critical of the dominant ideology are produced
or released. Now, anyone or any organisation can object to a film, and the
government can force it to be re-censored, causing even more problems for
filmmakers. The decision to dissolve the appellate tribunal was undemocratic
and made without consultation. Even now, filmmakers have little input in the
certification process, with censor officers carrying out the government's
wishes. In an India where movies such as ‘Piravi’ and ‘Amma Ariyan’ were
released, bills like these stand as a firing squad against the dissent that is
raised against the Government through the medium of Cinema. Our national
leaders' newfound language about freedom, modernism, and development, for
example, were not applicable to the cinema censorship machinery. Even in this
new era, cinema remains vulnerable to political malice and administrative
constraints.