Does the Centre’s attempt to reclaim ‘revisionary power’ by amending the Cinematograph Act subverts the Rule of Law?

By Athik Saleh

Introduction

There are various mediums of mass communication through which the population express their emotions, messages, stories, fact…There are books, songs, folklore and then there are films. No other medium, however, captures the psyche of a population or society like films do. They create a cocktail of a visual and audio treats for the viewers.

From Raja Harishchandra, a silent movie made in 1913 till 2021, there is no other medium of mass communication that has captured the imagination of Indians like films.

India is the country that makes the greatest number of feature films in the world. Bollywood, Tollywood, Kollywood, etc. are Hollywood-inspired names of various language-based film industries in the country. This shows how different regions of the country, despite the innumerable differences between them, have taken to films.

Films and the film industry in India are in the news for all the wrong reasons these days. No, it isn’t because of something a notorious actor or a director did.

On the other hand, it is because of certain proposed legislative reforms by the Government of India. The Government of India has proposed certain amendments to the legislation which governs film certification in the country, the Cinematograph Act of 1952.

Of all the amendments proposed by the draft Cinematograph (Amendment) Bill, 2021, there is one in particular which has become the thorn in the way of many a filmmaker.

They fear that the creative freedom required to make a film, a piece of art, will be lost once the proposed amendment becomes law.

Thus this article discusses the new Cinematograph Amendment Bill, 2021.

What is the proposed amendment?

The draft Cinematograph (Amendment) Bill, 2021, for which the Ministry of Information & Broadcast invited comments and suggestions until July 2^nd from the public, proposes to make certain sweeping changes. It involves regulation of OTT platforms, the introduction of more age categories for certification, provisions to tackle piracy, and most importantly, the most controversial provision which grants the Central Government revisionary power.

According to the Ministry of Information and Broadcast, the amendment is to address the complaints that government receives for violation of Section 5B (1) of the Cinematograph Act, 1952. Section 5B of the Cinematograph Act has never been short of controversy.

It puts the Government in a position of power to determine what is appropriate and what is not.

Section 5B (1) of the act provides that “a film won’t be certified if any film or part of it is against the sovereignty and integrity of India, the security of the state, affects friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to any offence.”^[1]

Similarly, Section 5B(2) empowers the government to set the guiding principles by issuing directions for competent authority to decide whether a film is fit for public exhibition or not. This sub-section of 5B already provided the Central Government with more than just a say in determining what is fir for public exhibition and what is not.

The proposed amendment adds another power to this list. Accordingly, if there are complaints regarding violation of Section 5B(1) or the guiding principle, the Central Government is empowered to direct the Chairman of the Central Board of Film Certification to re-examine a movie that is already cleared by the Censor Board. This is the power of revision granted to the Centre by the new amendment.

Why is the amendment being questioned?

Out of all the proposed amendments to the Cinematograph Act of 1952, the amendment to Section 6 of the act by way of the addition of a proviso to sub-section (1) is the most controversial and is being questioned by the film fraternity and the public alike. Before we jump into the controversy, we must first take a look at Section 6(1).

Section 6(1) already empowers the Central Government to call upon the board for the record of any pending pr decided film and give direction to the board regarding the same.

The board is bound to act on such direction from the Centre. It is clear from the aforesaid that, the Centre always enjoyed great power as far as the Cinematography Act, 1952 is concerned.

Why then does the proposed amendment to grant the Centre revisionary power has created such a huge uproar?

Article 19(1) of the Indian Constitution talks about various freedoms available to a citizen. This includes freedom of speech and expression. To build a conducive democracy, the citizens must have the right to freely express their views without the fear of being repressed.

However, Article 19(2) of the Constitution provides for the exception to the freedoms granted under Article 19(1). It is under the clout of these restrictions have the Government brought into fore the Cinematography Act of 1952.

The Cinematography Act of 1952 has never been a friend of filmmakers. By its very nature, it tries to suppress the freedom of filmmakers to create.

The board established under the Act has never been a friend of filmmakers. The constitutionality of censorship in India was upheld by the Supreme Court in K.A. Abbas Vs Union of India & Anr.^[2]

The Court was satisfied by the Government’s assurance that its influence will be limited and that the appeal from the decision of the board will be decided by a court or an independent tribunal.

The Film Certification Appellate Tribunal (FCAT) was established in 1983 to this effect. However, the recent Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021 has substituted the word “tribunal” in the act with “high court”, which means that the High Court is the only source of relief for those filmmakers who are aggrieved by the action of the CBFC.

This is again in conformity with the Supreme Court’s judgement in K.A. Abbas Vs. Union of India & Anr.^[3]

It must however be noted that the spirit of the judgement in the aforementioned case was that the Union Government must reduce its involvement in the process of film certification and must leave it to expert bodies. The reality is far from it.

This isn’t the first time that Government has tried to empower itself with revisionary powers. The Karnataka High Court in K.M. Shakarappa Vs. Union of India^[4] had held that the Union Government cannot exercise revisionary power on a decision made by the board. This decision of the High Court was upheld by the Supreme Court in Union of India Vs. K.M. Shankarappa^[5].

In this case, the Supreme Court had said in disagreeing with the Government’s contention that revisionary powers are required to handle law and order situations that, “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 is maintained”.

The Court added that “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 is maintained by taking appropriate actions against persons who choose to breach the law”.

From the Government’s perspective, for claiming revisionary powers, the existence of FCAT will always be a hurdle. The abolition of the tribunal must be looked at from this perspective too.

The powers granted by the Cinematography Act to the Government are manifold. Apart from Sections 5B and 6(1), there is Section 5E which allows the Government to suspend or revoke a certificate granted. Then there is Section 13 that empowers the Union government or local authority to suspend the exhibition of a film in anticipation of breach of peace in a particular area.

The present amendment which proposes to empower the government to direct the board to review its decision in case of a complaint received regarding violation of Section 5B(1) creates a whole another problem for filmmakers.

Section 5B(1) is a reproduction of Article 19(2) of the Constitution. It talks about sovereignty and integrity of India, public order, and integrity of India, public order, decency, morality, etc.

The question is, who is going to decide whether a film or a part of a film violated any of these subjective ideas? Another important point to be noted is that the determination is dependent on detailed guidelines formed by the Government itself.

The chances that arbitrariness might seep into the decisions of the board depending on their views is very high when the determination is dependent on vague terms such as morality, decency et. Al.

The Supreme Court in Indibly Creative Private Limited & Others Vs. Government of West Bengal^[6] had talked about the importance of accommodation of diverse views and how essential it is for the promotion of freedom of speech. The Court also emphasized how provisions such as Sections 5B(1) and 13 of Cinematograph Act, 1952 must be interpreted within the ambit of rule of law and arbitrary state action must be prevented.

The uproar against the proposed amendment to Section 6(1) is warranted because of how it will stifle the freedom of expression of filmmakers. It is unjust and arbitrary to subject a filmmaker who, after obtaining all the necessary approvals and making all the arrangements required to exhibit a film, still have to live in anxiety and fear of their film being denied the certification on review after being certified by the same board.

Once the board grants its approval to exhibit a film, a legitimate expectation is created and it is not reasonable to put them in an uncertain position even after that.

Conclusion

The Supreme Court in K.M. Shankarappa^[7] declared Section 6(1) of the Cinematography Act of 1952 unconstitutional and asked the Government to bring appropriate legislation if it desires to nullify a judicial order.

However, what the Ministry of Information and Broadcast has tried to do by introducing the new amendment is an entirely different thing. The amendment isn’t trying to nullify the judicial order but is simply asking the quasi-judicial body to review its decision if the Government deems such review necessary.

The decision of the Court in K.A. Abbas^[8] and K.M. Shankarappa^[9] ask for minimal involvement of the Government. The Government though, through the colorable exercise of its powers is trying to subvert the freedom of expression granted to the filmmakers by the Constitution.

To appease every Tom, Dick and Harry who is bound to find something offensive in every other film, the Government is opening Pandora’s box.

Arbitrary state action is the antithesis of rule of law. In a democratic society set up based on rule of law, there is no place for arbitrary action. The proposed amendment which gives the Government revisionary power is in itself arbitrary. It puts the mind of a filmmaker in perpetual fear of his/her film being pulled off the screen at any moment.

To put the fundamental right of a citizen in such a state of uncertainty without any reasonable cause and means, is arbitrary and against rule of law.

References

• deccanherald.com
• thewire.in
• scroll.in
• indianexpress.com
• indianexpress.com
• .firstpost.com
• .telegraphindia.com

1. Anita Joshua, “Centre moves to restore ‘revisional powers’ over film certification”, The Telegraph Online, 20^th June 2021, available at: telegraphindia.com (last visited on July 12 2021) ↑

2. K.A. Abbas Vs. Union of India & Anr., AIR 1971 S ↑

3. Supra. ↑

4. K.M. Shakarappa Vs. Union of India, ILR 1990 KAR 4082 ↑

5. Union of India Vs. K.M. Shankarappa, (2001) 1 SCC 582 ↑

6. Indibly Creative Private Limited & Others Vs. Government of West Bengal, 2019 SCC OnLine SC 520 ↑

7. Supra. ↑

8. Supra. ↑

9. Supra. ↑