Will the Cinematograph (Amendment) Bill, 2021 restrict the freedom of speech and expression of filmmakers?

Introduction:

In the present era, the government has long been trying to censor the film industry by making laws time and again that help its cause. The government tries to censor the industry to promote its propaganda and spread the message that will help in spreading the message that is approved by the government. This would further help the government in checking the chaos that is being introduced by the ideas of the filmmakers and accordingly take corrective action even before the film is released. The cinematograph act, 1952 has been subjected to a lot of amendments over the years and the last one being in the year 2019. It was meant to primarily deal with piracy. Now some additional powers are being granted to the government in the latest amendment bill, 2021.

History

The cinematograph act, 1952 has undergone many amendments since its inception to make it relevant to the constantly evolving and expanding filmmaking industry. The government has regularly formed committees to ensure that timely and adequate amendments to the act can be provided. Two prominent committees formed by the Government are, Justice Mudgal Committee in the year 2013 and Mr. Shyam Benegal Committee in the year, 2016 and the resulting bills namely, The Cinematograph (Amendment) Bill, 2013 and The Cinematograph (Amendment) Bill, 2018^[1]. The recommendations made by the committees formed are further used in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which is set to censor the Over the Top (OTT) platforms.

Latest Amendment

In the current amendment, certain changes are being proposed to the present act which has led to a backlash by various renowned personalities in the industry as they voice their opinion against the same. The major amendments proposed by the Cinematograph (Amendment) Bill, 2021 areas follow-

• The bill suggested that the certificates that are provided to the films must be for a perpetual period and not for the currently set standard of 10 years.
• The bill has proposed to add three subcategories to the already existing U/A category to form U/A 7+, U/A 13+, and U/A 16+ which would help in further bifurcating the required parental guidance for the required screening.
• The Ministry of Information and Broadcasting is proposing that the act should give some power to the Centre. This means that if a film has not been certified by the CBFC then the central government holds the power to reverse the decision of the CBFC and thus can certify or recertify a film according to its discretion.
• In addition to the above-mentioned clause, the bill has also proposed to add the discretion of the central government to grant the power of directing the chairman of the Board to re-examine a film and take action to certify or not certify a film before it is available for public exhibition if deemed necessary.
• The bill proposes to deal with the issue of piracy that has long since plagued the industry and results in millions of dollars in losses annually to the industry. The issues need to be addressed and this is done by way of Section 6AA of the amendment. It proposes to criminalize the act for a minimum duration of 3 months and a maximum duration of 3 years and also a fine of 5% of the cost of production of the film or both.

These are all the major amendments that are proposed by the bill. All these amendments are proposed to be made to set the pace for the future of the industry and make the changes that the government feels are necessary to keep the checks on the industry and maintain a balance that is necessary for the benefit of society. This would help the government to censor the media content that is being presented to the public and help in fulfilling their motive of influencing the public and spreading the propaganda which they approve.

Criticism

The present bill of the amendment has not been free from criticism as several filmmakers have expressed their concerns regarding their freedom of speech and expression. They expressed their concerns by citing Article 19(1)(a)^[2] of the constitution and alleging it is being violated along with the freedoms enjoyed by the industry to express their views on the political, economic, social, cultural environment of the country is also going to be suppressed. This is not the first time article 19 is being argued against the Cinematograph act, 1952. Section 6(1) was struck down as unconstitutional by the Karnataka high court in the case of K.M. Shankarappa v Union of India ^[3](1990) and the decision was upheld by the Supreme Court of India in the case of Union of India v K.M. Shankarappa^[4] (2001).

Briefly, the Supreme Court of India held Section 6(1) of the Act to be unconstitutional. The court was of the view that once the government had established a quasi-judicial body, and the body took a decision and certified a particular film for public exhibition, the executive could not change the decision of the body. ^[5]The court held Section 6(1) to violate the rule of law and contrary to the basic structure of the constitution. The court held that the executive could nullify or overrule a judicial or executive decision by enacting the appropriate legislation but they could not set at naught a judicial order without enacting appropriate legislation. The court also set the negative contention that there would be a law and order problem, and held that once an expert body has cleared the film, it is for the respective state government to maintain law and order.

Now the government has proposed by way of the amendment to the previously struck down Section 6(1) of the act by granting revisionary power to the government on account of violation of section 5B(1) of the Act. This would make the section applicable as the arbitrariness will be removed and there will be no ambiguity relating to the application of the power rendered in the aforementioned provisions.

In the case-law of K.A. Abbas the supreme court held that censorship in India is allowed as the law provides for the justification of the censorship that is done by the government to provide certification to a film. This particular case law is refuted by the filmmakers in India.  As it makes their case of removing the censorship weaker. This is welcomed by the government as they can use certification as a weapon to force the filmmakers to make certain amendments to their films and cut out the scenes which they believe would harm their cause in society. This is argued that the free speech and expression of the filmmakers are being violated. This case further helped in the formation of FCAT for speedy and timely disposal of cases related to the act which was agreed by the government.

Now the Central Government passed an ordinance, the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 to abolish the Film Certification Appellate Tribunal (FCAT). The proposed bill also aims to convert this ordinance into regular law by placing it in legislation. This would mean that the special tribunal that is set up for the matters related to film certification would be abolished permanently and all the burden would be put back on the courts. The expertise that is present with the tribunal and is enjoyed by the parties would be removed and the courts would need to interpret the cases according to their understanding which would make the process less scientific and ambiguous.

The amendment would give unrestricted power to the government to issue certificates to the films which would fit in with their agenda and would make it easier for the government to censor the films which would stray away from the objectives and goals of the government.

Conclusion

The proposed bill contains both positive as well as negative impacts. The criminalization of piracy is a positive move as it would discourage the would-be offenders from doing such an act and thus would save millions of dollars for the industry. ^[6]On the other hand, the bill will provide the government with unlimited and excessive power to take decisions and mold the film according to their liking. This would impact the industry and make the cinema a weapon to be used by the government to spread propaganda. So Yes, it can be safely said that the Cinematograph (Amendment) Bill, 2021 will restrict the freedom of speech and expression of filmmakers.

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References:

[1] Romik Chawla, Controllig piracy or expression, an analysis of the cinematograph (Amendment) bill 2021, IPRMENTLAW (2021), https://iprmentlaw.com/2021/07/01/controlling-piracy-or-expression-an-analysis-of-the-cinematograph-amendment-bill-2021/ (Last visited Oct 17, 2021)

[2] The constitution of India, 1950, Article 19(1)(a)

[3] K.M. Shankarappa vs Union of India [ ILR 1990 KAR 4082]

[4] Union of India v K.M. Shankarappa [ Appeal (civil) 3106 of 1991]

[5] Sanjana, India: an outlook on the Cinematograph (Amendment) Bill 2021, Khurana and Khurana (2021), https://www.mondaq.com/india/broadcasting-film-tv-radio/1107304/an-outlook-on-the-cinematograph-amendment-bill-2021 (Last visited on Oct 17, 2021)

[6] MD Tasnimul Hassan, Why proposed changes to cinematograph law hurt right to free expression, The leaflet (2021), https://www.theleaflet.in/why-proposed-changes-to-cinematograph-law-hurt-right-to-free-expression/ (Last visited Oct 18, 2021)