Introduction
From its very inception, the Cinema has always been crucial in upholding the values which the general masses consider important. It has acted as a tool of propagating various ideas.
Getting restricted to mere entertainment is not what the cinema/movies is all about. It has a larger role in the contemporary times because of the clutching of more and more powers by the administration.
Being adorned with the crown of supreme power, there remains always a tendency upon the rulers to promote despotism and subsequently throttling the democratic values.
It is in this regard that the Cinema should deliberately resist such attempts made by the administrations across the world and manifest the Principles of Liberty and Democracy which the people deem sacred, and it should also infuse in the minds of the people, ‘a sense of democratic activism’ with an object of enlightening the masses with the Doctrine of Democracy and subsequently disseminating such ideals to the succeeding generations.
In this article, we are going to discuss about the much-discussed legislation in today’s time i.e. The Cinematograph Act (1952), along with the newly proposed Cinematograph (Amendment Bill) 2021[1], which has created a furor among the filmmakers and various personalities from the film industry.
The Structure and Content of The Act
The Legislative Intent
The Cinematograph Act was enacted in the year of 1952 with an objective of making requisite provisions for the purpose of certifying the cinematograph films for exhibition and also for regulating such exhibitions by means of cinematographs.
Since, its introduction, The Act has undergone several amendments. This Act primarily targets in certifying the films so that such films can be made available, after certification, to the public.
The Board & Its Function
By this Act, the Union Government is entitled to form a Board for the purpose of sanctioning any film. Commonly, this Board is known as the Central Board of Film Certification (CBFC).[2]
The CBFC is assisted by the regional offices which is tasked with the viewing, classifying, recommending modifications and cuts, to the cinema before its release.
It is during these processes that the regional offices are assisted by the Advisory Panels established by the Union Government under this act.[3]
Any person who is desirous of exhibiting any film is required to make an application in the prescribed manner to the concerned board for getting a certificate issued in respect thereof, and the board after getting the reports of the Advisory Panel and Regional Offices can either sanction the film for the respective group of viewers which it thinks, is entitled to view the film, or either it can refuse to grant such certificate.[4]
Now, if there is any disagreement pertaining to the certification of any film between the members of the Regional Offices and the members of the Advisory Panel, then under such circumstances the matter can be forwarded to the Revising Committee of the Board (CBFC).
If the Revising Committee is also unable to settle the matter, then it will be passed on to another revising committee or to the chairperson of the CBFC for its ultimate determination.
The Beginning Of Controversy
Now, we will discuss two major facets of this act.
The first one is of the Revisionary Powers of the Union Government & the second one is of the availability of an Appellate Tribunal; both of which has sparked a controversy in the recent times.
As per the Section 6 of the Act, the Central Government is empowered to call for the records pertaining to the proceeding of any film which stands pending before or hasn’t yet been decided by the concerned Board or if the proceeding, as the case may be, isn’t pending and has been finally decided by the Tribunal, then the Central Government, after making the requisite Inquiry into the matter, can make an order, if it considers this necessary, as regards the matter, and the decision or order of the central government will be final and the Board will dispose of the matter as per or in conformity with the order/decision of the government.
Let us now assume a situation, where the person who is desiring of exhibiting a film, has been refused by the Board.
Then for such circumstances, there is one appellate body, known as the Film Certification Appellate Tribunal (FCAT) for the redressal of the grievances of such people.
Although, initially this quasi-judicial body didn’t exist. It was after the pronouncement of the Supreme Court in the matter of K. A. Abbas vs. Union of India and Anr.[5] that the Appellate Tribunal was established.
It is pertinent to be noted here, that from the constitution of the Board to that of the Tribunal; and from the revisionary powers of the government to the exercise of judicial functions, The Union Government was empowered with so much of power that it created several hurdles in the pathway of the Film Industry.
The ambit of the revisionary powers of the Government was so large that it led the Hon’ble High Court of Karnataka to actually restrain the government from having such powers, in the matter of K.M. Shankarappa vs Union of India[6].
Later, when the matter appeared before the Hon’ble Supreme Court, the Supreme Court too reaffirmed the same position taken by the Hon’ble High Court of Karnataka.
In this regard the Hon’ble Court was of the opinion that “Once a quasi-judicial body like the Appellate Tribunal, consisting of a retired Judge of a High Court or a person qualified to be a Judge of a High Court and other experts in the field, gives its decision that decision would be final and binding so far as the Executive and the Government is concerned. To permit the Executive to review and/or revise that decision would amount to interference with the exercise of judicial functions by a quasi-judicial Board. It would amount to subjecting the decision of a quasi-judicial body to the scrutiny of the Executive. Under our Constitution the position is reverse. The Executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution. The Legislature may, in certain cases, overrule or nullify the judicial or executive decision by enacting an appropriate legislation. However, without enacting an appropriate legislation, the Executive or the Legislature cannot set at naught a judicial order. The Executive cannot sit in an appeal or review or revise a judicial order. The Appellate Tribunal consisting of experts and decides matters quasi-judicially. A Secretary and/or Minister cannot sit in appeal or revision over those decisions. At the highest, the Government may apply to the Tribunal itself for a review, if circumstances so warrant. But the Government would be bound by the ultimate decision of the Tribunal.”[7]
The Judicial Position
So, it was after this judicial pronouncement that the revisionary powers of the Union Government were scooped out of the Cinematograph Act of 1952. And subsequently the unfettered powers possessed by the government were brought under a scanner.
But the provisions enabling the government with the revisionary powers revived, like Frankenstein, with the recently proposed Cinematograph (Amendment) Bill of 2021.
The Cinematograph Act in Contemporary Times
Recently, the Ministry of Information and Broadcasting (Government of India) by a notification dated 18 June, 2021 sought comments of the general public on the Cinematograph (Amendment) Bill 2021.[8]
The Basic Facets of This Bill Are As Follows:
1) Earlier the category of U/A (unrestricted public exhibition, with parental guidance for children under age twelve) was itself a single category. But with this new Bill, the Government aims to further categorise the U/A category into the U/A 7+, U/A 13+ and U/A 16+ categories.
2) By this Bill, the Union Government is empowered with the power to reconsider the certificate of any film and subsequently quash its validity, if the Government is of the opinion that the film has in any way, violated or not abided by the provision of section 5B(1) of the Act.
Section 5B(1) says that “A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of [the sovereignty and integrity of India] the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.”[9]
3) One of the most important point of the Bill, which the government is determined to address is that of the Piracy.
Earlier, the matters relating to piracy in the movies were nearly left untouched and there was no proper/exact provision to address the issue.
By this Bill, the government has sought to add Section 6AA targeting piracy.
As per the proposed section “Notwithstanding any law for the time being in force, no person shall, without the written authorization of the author, be permitted to use any audio-visual recording device in a place to knowingly make or transmit or attempt to make or transmit or abet the making or transmission of a copy of a film or a part thereof.”[10]
It should also be noted here that in the context of piracy, the Bill also seeks to penalize those who violate the provisions of the proposed bill.
The Bill, by way of an insertion of a sub-section 1A in Section 7 of the act says that “If any person contravenes the provisions of section 6AA, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to three years and with a fine which shall not be less than three lakh rupees but which may extend to 5% of the audited gross production cost or with both.”[11]
Conclusion
Let’s now bring the discussion in the backdrop of all the events of contemporary times. The Union Government has recently passed The Tribunals Reforms Bill, 2021[12] in the Parliament, abolishing a number of appellate bodies citing reasons that the objective with which the Tribunals were established was not achieved by the quasi-judicial bodies and there is also a shortage of government funds and Tribunal officials to deal with the administration and smooth functioning of the Tribunals.
One such Tribunal abolished by the government is the Film Certification Appellate Tribunal (FCAT). And the government has held that any matter which FCAT earlier dealt with, will now be covered by the High Court.
It’s very interesting to closely monitor the policy and intent of the Ruling dispensation; the Government is indeed determined in addressing the issue of piracy which has caused a huge loss to the film industry in the past. Government has also provided that the Certificate which was earlier granted for a period of 10 years will now be granted for perpetuity.
But the Government has parallelly tried to consolidate more powers. It’s a matter of great travesty and simultaneously of concern that the government which already possesses a humongous power to regulate the cinematic activities in India has, by way of this Proposed Bill tried to assume more powers. In the entirety and by way of conclusion, it can be said that “the government is offering a bouquet of roses, full of thorns”.
References
[1] Cinematograph (Amendment Bill) 2021 (pending)
[2] S. 3, The Cinematograph Act. 1952
[3] S. 5, The Cinematograph Act. 1952
[4] S. 4, The Cinematograph Act. 1952
[5] K. A. Abbas vs The Union of India & Anr, 1971 AIR 481, 1971 SCR (2) 446
[6] K.M. Shankarappa vs Union of India ILR 1990 KAR 4082
[7] Union of India vs. K. M. Shankarappa, Appeal (civil) 3106 of 1991
[8] Ministry of Information and Broadcasting (Government of India) Public comments sought on the Cinematograph (Amendment) Bill 2021, available at https://mib.gov.in/sites/default/files/Public%20comments%20sought%20on%20Cinematograph%20%28Amendment%29%20Bill%202021.pdf, last seen on 14/09/2021
[9] S. 5B(1), The Cinematograph Act. 1952
[10] Supra 8, at 5.
[11] Ibid.
[12] The Tribunals Reforms Bill, 2021 (passed by Rajya Sabha, 09/08/2021)
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