When the Centre decides what you watch
The ministry of information and broadcasting (I&B) has invited public comments on the draft Cinematography (Amendment) Bill, 2021. Essentially brought in the name of tackling piracy, the bill marks the return of what filmmaker Adoor Gopalakrishnan calls a “super censor” provision
The ministry of information and broadcasting (I&B) has invited public comments on the draft Cinematography (Amendment) Bill, 2021. Essentially brought in the name of tackling the menace of piracy, the bill marks the return of what filmmaker Adoor Gopalakrishnan calls a “super censor” provision, and goes against a catena of established judicial precedents.
The Centre has brought back a controversial provision (Section 6), which provided it absolute “revisional” powers to make any order pertaining to any pending film, or already decided by the Central Board of Film Certification (CBFC). Even if a film was certified by the Board or appellate tribunal (now been abolished), it meant that the Centre’s word would trump its decision.
Constitutional law scholar AG Noorani had warned that the structure of the Board, the advisory panel and the two committees (of CBFC) could be reduced to naught by a mere order from New Delhi. The section also allowed the Centre to withhold the disclosure of any fact in relation to Section 6 if it deemed it to be against “public interest”.
This provision was held unconstitutional by the Supreme Court in KM Shankarappa v Union of India (2000), wherein it stated that the executive could not be permitted to modify or review decisions of a quasi-judicial body such as the tribunal. It noted that permitting the same would inevitably amount to being a travesty of the rule of law.
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And yet, the draft Bill re-introduces a previously declared unconstitutional provision, ostensibly arguing that sometimes complaints are received against a film for violation of Section 5B (principles for guidance in certifying films) of the Act after a film has been certified. By virtue of this complaint, the ministry can order re-examination of the film.
This reasoning is mere paraphrasing of the “law and order” submission by the Centre, which had, in the past, been rejected in Shankarappa. Further, in various cases, SC has held that interfering with film certification on account of threats of demonstration and illegal violence would amount to negation of rule of law, and a surrender to blackmail and intimidation.
Additionally, Section 5B is over-broad and vague, allowing banning or cutting of scenes on grounds such as portrayal of “anti-national”, “obstructionist”, “antisocial” attitudes. Due to the largely political nature of appointments at CBFC, it would entail that interpretation of these grounds would depend on the subjective ideologies of the ruling dispensation.
Many films have triggered protests. The proposed provision, which also allows the government to order re-examination on complaint under Section 5B, not only legitimises these protests, but provides a mechanism to take action against previously certified films. In effect, this will hand over even greater powers to vigilante groups who speak in the name of the nation or religion or caste. India’s experience shows that the State would rather retreat than stand for free expression when such protests occur.
The draft amendment also comes at a time when the IT Rules, 2021 have, for the first time, introduced a regulatory mechanism for OTT platforms. These rules bestow excessive power on the Centre to not only receive grievances with regard to violation guidelines, but also provides it untrammelled power to remove the allegedly offending content in “cases of emergency”.
Reading the draft amendments and IT rules together, it is clear that the Centre will have the last word on what we watch. Article 19(1) (a) of the Constitution gives us the fundamental right to free speech and expression. To be sure, there are constitutionally-stipulated reasonable restrictions. However, the proposed amendments would create a chilling effect leading to self-censorship as well as curtail legitimate criticism against the ruling party or questioning of dominant morality through the medium of films. For the sake of artistic freedom and free speech, revise the amendment.
Radhika Roy is a Delhi-based lawyer and associate editor at LiveLaw. Surbhi Karwa is a Delhi-based lawyer and researcher
The views expressed are personal