Cinematograph Act Amendment

The Modi government’s move to play super censor has the film fraternity up in arms

Print edition : July 30, 2021

Shyam Benegal, who headed a committee earlier to review the Cinematograph Act. “The system is working perfectly fine. Why does the government have to interfere in film censorship?” he asks. Photo: SREENIVASA MURTHY V

Sudhir Mishra, whose films have been fiercely political. “What is the value of the CBFC? When anyone can recall any film, how do I make any film?” Photo: AFP

Adoor Gopalakrishnan. “Why are they [the government] so insecure and scared as to bring back something the court has said no to? We are not an autocracy.” Photo: S. Mahinsha

Amol Palekar. In 2017, he and Sandhya Gokhale filed a petition in the Supreme Court challenging the CBFC’s power “to direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition”. Photo: Thulasi Kakkat

The Modi government’s move to give itself the power to re-examine a film cleared by the CBFC has the film fraternity up in arms and puts the spotlight on a few landmark court verdicts.

Film-maker Anubhav Sinha’s laconic response conveyed best what film-makers like him think of the proposed amendments to the Cinematograph Act, 1952: “I am tired of this all. For how long do we have to prove white as white?”

The film industry is exasperated by the government’s desire to play super censor to films cleared by the Central Board of Film Certification (CBFC), popularly known as the censor board, but which are still considered likely to imperil peace in the country, brotherly relations with a neighbour, and the sovereignty and security of India. Effectively, it renders the CBFC a toothless body, as a film cleared by the CBFC and ready to hit the silver screen across the country may have to clear yet another hurdle before being assured of an uninterrupted run at the box office. In politically surcharged times, it could be far from easy, leaving the creative fraternity vulnerable to political shenanigans.

On June 18, the Ministry of Information and Broadcasting mooted a proposal to amend the Cinematograph Act, 1952, and invited comments on the draft Cinematograph (Amendment) Bill, 2021. The Bill seeks to make the certificate issued to a film valid in perpetuity and obviate the need to renew it every 10 years. It proposes to introduce three age-based categories in the U/A category: U/A 7, U/A 13 and U/A 16. Films are now classified as U for unrestricted exhibition, U/A for films which required the guidance of an adult for audiences below 18, and A for films for adults only. The Bill outlines provisions to check film piracy, too, and talks of a jail term and fine for those found guilty. All these proposals have not evinced any negative reaction from the film fraternity. But it is concerned about the proposal to add a proviso to sub-section (1) of Section 6 of the Cinematograph Act, which says the Union government can ask the chairman of the censor board to re-examine a film even after it has been certified for public exhibition and to reverse its decision “if the situation so warranted”. In other words, the CBFC, never far from allegations of political interference given the fact that its chairman and members are appointed by the Central government, will be stripped of its status as the sole authority on film censorship. Instead, the Central government will become the final arbiter.

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Film-makers, actors, writers and artistes have raised their voice in unison against this. Anything critical of the government could be nipped in the bud using this provision. Or, a film-maker who dares to challenge the moral turpitude of society could find himself or herself in troubled waters even after managing to get the CBFC certificate for a film. In the past, right-wing organisations have protested against the screening of films such as Fire, Ram Ke Naam and Final Solution made by Deepa Mehta, Anand Patwardhan and Rakesh Sharma respectively. However, these films could be screened after the initial trouble thanks to the CBFC certification. People could disagree with the films, criticise them but could not stop their screening. That may no longer be the case if the proposed changes become a reality.

Voices of protest

Noted film-makers and actors such as Adoor Gopalakrishnan, Shyam Benegal, Kamal Haasan, Shabana Azmi and Suriya spoke out against the proposal. Writing in The Hindu, Kamal Haasan said: “I have always believed in the power of cinema to transform society. The belief stems from my personal experiences as a film-maker and I have also seen first-hand what it is to defend one’s constitutional rights. The recent action of the Central government is one such. I am referring to the draft Cinematograph (Amendment) Bill, 2021, for which the Ministry of Information and Broadcasting has asked for opinions before presenting it to Parliament.”

Shyam Benegal, who had earlier headed a committee to review the Act, said, “In the existing laws the recall of the film is on the basis of a threat to the sovereignty of the country. People on the CBFC do not necessarily go with the ideology of the government. They go with the Constitution of the country. They take decisions accordingly. They have to be respected. It should not be that any government comes to power and wishes to review any film to suit its narrative. The system is working perfectly fine. There is no popular demand for any kind of change. Why does the government of the day have to interfere in film censorship?”

Undermining the CBFC

Sudhir Mishra, whose films have often been fiercely political and savagely critical of the polity, felt the move undermined the CBFC’s authority. “What is the value of the CBFC? When anyone can recall any film, how do I make any film? Why do I make a film and spend money on its release when it can be recalled?” he asked. Many people still recall his Hazaaron Khwaishen Aisi on the Emergency and Yeh Woh Manzil to Nahin where students take on the government. With the proposed changes, such films may no longer see the light of day. “We would be expected to make docile films,” he told the media. Or worse, films that either trumpet the alleged accomplishments of the ruling dispensation or act as subtle, uncritical vehicles for the Centre’s policies. For example, Akshay Kumar’s recent box office offerings such as Kesari, Toilet: Ek Prem Katha and Padman.

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The Indian Motion Picture Producers’ Association, the Producers Guild of India, the Indian Film and Television Producers Council, and the Western India Film Producers’ Association responded to the Bill by reiterating the oft-quoted Supreme Court judgment in K.M. Shankarappa vs the Union of India. The case relates to Kannada director Shankarappa challenging in the Karnataka High Court the Central government’s decision to review the censor board’s decision. He challenged certain provisions of the Cinematograph Act, 1952, as amended by Act No. 49 of 1981. In the writ petition he challenged the constitutional validity of Sections 3(1), 4(1), 5(D), 6(1) and 7(1) of the Act. The judgment in 2000 upheld the film-makers’ right to freedom of expression.

Citing the judgment, the industry bodies, in a letter to the Information and Broadcasting Minister, said, “The Supreme Court expressed its displeasure with the Central government seeking to ‘exercise power of review or revision over the decisions of the board or the tribunal’. The Supreme Court went on to hold that 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 executive cannot sit in an appeal or review or revise a judicial order. The appellate tribunal consisting of experts decided matters judicially. A Secretary and/or Minister cannot sit in appeal or revision over these decisions. At the highest, the government may apply to the tribunal itself for a review, if circumstances so warrant.”

Tribunal disbanded

Incidentally, just before the proposal to amend the Act, the government promulgated the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, doing away with the Film Certification Appellate Tribunal, a statutory body that film-makers unhappy with the cuts suggested by the CBFC could approach. Now, their only option is to approach the High Court with all the risks of escalating costs and delays. Many film-makers read the disbanding of the appellate tribunal as an attempt to tighten the noose around film-makers whose works may be critical of the government of the day.

While being open to suggestions on the different classification of films for public release, the industry bodies have requested a clear outline of the benchmark to be used for it. The letter says the proposal to “further sub-divide the U/A category into age-based categories of certification such as U/A 7+, U/A 13+ and U/A 16+ is in addition to the already existing categories of U and A. While the basis for distinguishing between content that is appropriate for an adult audience (A) and that which is appropriate for people that are below the age of 18 (U/U/A) has been tested and seems to be widely accepted within the film-makers’ community as also by the CBFC, however, the factors to be considered in order to sub-divide this classification on the basis of age is unprecedented. While the principle of such classification is welcome, it is requested that the criterion for making such classification ought to be clear and also made available in [the] public domain.”

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On the latest attempt to quell voices of resistance, film-maker Rakesh Sharma said, “The Modi government now wants the power to ban, recall, mutilate or maim any film even if it has been certified by the statutory constitutional body called the CBFC. So any fringe group can get Ministers or bureaucrats to act against films they find offensive.”

What the courts said

The government’s move to exercise greater control over content cleared for public exhibition has brought the spotlight back on a couple of landmark judgments, besides the Shankarappa case. The film-makers now quote S. Rangarajan vs P. Jagjivan Ram. The case was about granting a U certificate to a Tamil film Ore Oru Gramathile (Once Upon a Time in a Village), produced by Rangarajan. The examination committee initially refused to grant the film a U certificate. Later, the revising committee recommended the grant of a U certificate subject to the deletion of certain scenes. This was challenged in the High Court by means of writ petitions on the grounds that the film treated the government’s reservation policy in a biased manner. It was also claimed that the film would create law and order problems in Tamil Nadu. Although a Single Bench dismissed the writ petitions, a Division Bench allowed them on appeal and revoked the U certificate issued to the film. Rangarajan went in appeal to the Supreme Court.

The Supreme Court said, “Freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the state to protect the freedom of expression since it is a liberty guaranteed against the state. The state cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression…. There does indeed have to be a compromise between the interest of freedom of expression and social interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment to freedom of expression demand that it cannot be suppressed unless the situations created by allowing the freedom are pressing and community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched.”

‘A Tale of Four Cities’

Rakesh Sharma also expressed his wish to challenge the verdict in K.A. Abbas vs the Union of India, 1970, where he felt “Justice [M.] Hidayatullah’s judicial pronouncements are really problematic, basically justifying censorship of cinema by assigning movies extraordinary powers to influence and corrupt gullible masses”. The said case was about Abbas’ documentary A Tale of Four Cities, which portrayed the contrast between the rich and the poor in the four metropolitan cities of India. The film had a few shots of the red light area of Bombay (now Mumbai). The film got an A certificate though Abbas had applied for a U certificate. On his appeal, the Central government issued a direction that a U certificate be granted provided he made specified cuts in the film. However, Abbas approached the Supreme Court seeking a declaration that “the provisions of Part 11 of the Cinematograph Act, 1952, together with the rules prescribed by the Central government in 1960 in the exercise of its powers under Section 5-B of the Act were unconstitutional and void”. The court upheld the general principles which had been laid down for the guidance of the censors.

In January 2017, film-makers Amol Palekar and Sandhya Gokhale filed a petition in the Supreme Court challenging the CBFC’s power under Section 4 (1) (iii), introduced in 1981, “to direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition”. It reminded many of the stand taken by Abbas almost 50 years ago.

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Yes, in many ways, film-makers today face odds similar to those contested by Abbas. As Adoor Gopalakrishnan said at a public event in Kerala, “Even at present, the film-makers have not much say in the certification process, with the censor officers implementing the will of the government. The Supreme Court had earlier said that the government has no right to demand re-censorship of a film which had already been censored. Why are they so insecure and scared as to bring back something the court has said no to? We are not an autocracy. Every citizen has a right to criticise the policies of the government in power.”

The question for film-makers is, for how long?