By Mahima Saraswat & Prashant
I. Introduction
The Union Government of India recommended introducing new changes to the current Cinematographic Act, 1952.[1] The Cinematograph (Amendment) Bill, 2021[2] seeks to bestow the Union Government with the power to review a film even after it has received certification from Central Board of Film Certification (‘CBFC’). It will give extraordinary powers to the Government by adding another layer of censorship. The other changes proposed by the Bill consist of Inclusion of three additional age-based classifications in the current U/A category; Keeping the legitimacy of a censor certificate for infinite time rather than calling for renewal every ten years; and Inserting provisions concerning piracy in the Act itself. This article aims to evaluate the situation and tries to underline the inconsistency that exists between the existing laws and in the end suggest relevant solutions.
II. Examining the Key Recommendations Proposed by the New Cinematograph Amendment Bill, 2021
A. Revisionary Power- A Blackball to Dominate Entertainment Industry
The recommendation advanced by the Union Government offers to amend the current Act by adding a proviso to Section 6 (1)[3] of the Cinematograph Act, 1952 that will authorize the Union Government to be in command to re-evaluate a film that has been certified for exhibition in public if it falls under the violations which have been outlined under section 5B (1) of the Act. The rationale is that section 5B (1) comes from Article 19(2)[4] of the Indian Constitution that enables the Government to regulate freedom of speech and expression through reasonable restrictions to maintain public order.
Before this proposed amendment, Section 6 of the Act principally equipped the Central Government with the powers to revise and evaluate any proceedings pending before the Board or decided by the Board. It was declared unconstitutional in K.M. Shankarappa v. Union of India[5] and the same resolve was upheld by the Hon’ble Supreme Court in Union of India v. K.M. Shankarappa.[6] The Court remarked that the executive could not adjudicate an appeal once it has been decided by the quasi-judicial body established by the Government which is CBFC here and such kind of revision would act as an intervention in the smooth functioning of the CBFC. In the cases of K.A. Abbas v. The Union of India &Anr.[7] and K.M. Shankarappa (Supra), the Supreme Court reiterated that “the Central Government should curtail its association in this field”. The Government has now propounded to withdraw Section 6 (1) of the Act which was outlawed by the Supreme Court and introducing a proviso to Section 6 (1) empowering the Government with reviewing powers following a contravention of Section 5B (1) which is nothing more than an endeavour to run the chronicle of Indian Cinema.
It also appears that the present administration has expressed its uneasiness over free speech[8] on numerous occasions. So, the question arises, does the current day Government possess the mandate to regulate and dominate the entertainment industry?
The proposed draft could perhaps give the Central Government a blackball to control and dominate films it considers dangerous to its political agenda. This, in turn, would directly harm the entertainment industry.
B. Film Piracy
Undoubtedly, the piracy of films is widespread and unrestrained in India[9]. The release of such films on internet give rise to immense economic losses to the Government Exchequer and to the film industry and there is a need to suppress such a practice. The proposed Bill aims to add two new sections to the existing statute by way of an amendment as follows:
The provisions proposed in the new Bill prohibit the unapproved transmission of audio-visual recordings of movies. They also penalise those who seek to defy the same by imprisonment and imposition of fine. It is pertinent to note that these provisions derive from the current Act that entitles the author to exclusive rights and also provides for various remedies to protect the author against any infringement.
(1.) Insertion of new Section 6 AA – Prohibition of unauthorized recording
(2.) Insertion of new Section 7 1A – Penalty for contravention of this part
The Central Government by introducing Section 6 (AA) sought to preclude uncertified audio-visual recording and transmission of such copy of film or any part thereof. However, a plain glance at Section 14(d)[10] of the Copyright Act will explain that “the absolute right to produce copies and to communicate the film to the public” is the exclusive right of the copyright holder. The embargo that the Government is intending to create is already well established under the Copyright Act. When it comes to sub-section 1 A of Section 7, it provides for imprisonment of not less than three months and which may extend to three years and along with the imposition of fine which will not be less than INR 3 lakhs and which may extend to 5% of the audited gross production cost. Even so, the intended proviso in sub-section 1 A of Section 7 provides an exception for violation of Section 6 AA by listing out an act that will fall under the ambit of copyright infringement under Section 52 of the Copyright Act[11]. If it will come into force then the oppressed will find the redressal under two legislations i.e., the Cinematograph Act and the Copyright Act which would make more difficult to prosecute the offender. However, the Government should have presented a new chapter combating piracy in the principal Act derive from the Copyright Act and should have handled the offence in respect to all works protected under the Act and thereby eliminating ambiguity too. Hence, if the Government intends to introduce these new sections in the Bill, the introduction seems to be displaced as the object of the Act is certification of cinematograph films for exhibition and not to come up with remedies for infringement which is already there in the Copyright Act,1957[12].
C. Re-categorisation of U/A Category for Certification of Films for Public Exhibitions
The existing Cinematograph Act, 1957 bestowed three categories for film certification that are:
- Unregulated public exhibition (U);
- Parental guidance required for children under 12 (U/A); and
- Adult films (A).
The Central Government’s proposed Bill intends to divide the existing (U/A) category further into a threefold age-based categorization – U/A 7+, U/A 13+, U/A 16+. This recommendation suggested by the Government appears to position with the code of ethics announced in the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021[13] that requires classification of online content available on OTT platforms like Netflix, Amazon Prime, etc.
III. Aftermath and Industry Concerns
It is evident that the abovementioned measures would affect the film and media industry as censorship is perilous. According to the apprehensions of many stakeholders[14] of the industry, these measures would obligate production houses, film directors to act in a certain manner to fulfil the government’s agenda. India empowers its citizens with many privileges, one of which is the right to artistic expression and creative freedom that further empowers the intellectual creation of the artist[15]. However, curtailing such freedom would overpower the filmmakers’ competence and that of the viewers to make informed choices because such a revisionary power would give the Government an upper hand to certify films according to its own docket instead of certifying on the rationale of content. It is also noteworthy to point out that in 2021, India has secured a rank of 33 out of 60 countries in the Civil Liberties Rating announced by the Freedom House’s World report[16] and ranked 142 out of 180 by the World Press Freedom Index in 2021.[17] India’s credentials with media freedom are running down every year and is a matter of great concern for a so-called democratic powerhouse like India.
The industry has also expressed its concerns over the role of CBFC and suggested that the proposed Bill must understandably outline the role of the CBFC as a framework that certifies films for exhibition in public instead of being a censor board.[18]
The annulment of the Film Certification Appellate Tribunal had already flattered the fair right of the filmmaker to get re-examined any pronouncement of the Board which is erroneous or prejudiced.[19] Currently, they have only the option to approach High Courts that would be bothering many.[20] But, can an already overburdened High Court address these grievances?
We can’t answer questions on the government’s behalf. However, we can make suggestions, and our recommendation would be that the administration addresses all these concerns raised by the industry with utmost clarity and reasonability. Moreover, the present statute must include provisions that support the growth of the film industry instead of inhibiting it.
IV. Concluding Observations
Cinema gets repressed in many ways—some ingenious, some harsh. But there is little doubt that the most evident and meddlesome interference with what filmmakers could make and what audiences could watch has come from governmental film censorship agencies.[21]
Oppression due to restrictions affects the film industry far more often than any other mass media because of the constant drive for enjoying command to invalidate any unfavourable expression of thoughts while the Film Industry plays a huge role in influencing the public and creating a powerful consciousness into the minds of individuals which might go against the political objectives of the administration.
Artistic freedom is vital in dealing with sensitive subjects necessary to be shown to the people, so the film industry needs reducing regulatory compliances. The proposed Bill does not seem to help with either compliance problems or freedom of speech through filmmaking in the industry. If the Bill becomes an Act, it will invalidate the Supreme Court Judgment. The independence of the Censor Board will get deduced. Hence, the Government needs to reconsider not bringing reforms regressive in their approach and conflict with artists’ freedom of speech and expression.
Strengthening penalties against piracy, which is already sanctioned by the Copyright Act,1957, does not seem to render any silver bullet to the complex issues of widespread piracy. The Government should simplify how the proposed provisions in the Bill are different from what was enumerated under the Copyright Act while the right- holders through timely legal action have sought remedies against illegal transmission through John-doe and Anton Pillar orders and by invoking other provisions catalouged under Chapter XIII of the Copyright Act. To tell the truth, the existing laws are quite capable in combating piracy. However, the enforcement lacks concreteness and has been insufficient. In the era of rapid digitialisation the minute crack in the enforcement could result in piracy that is why enacting more stringent laws would be purposeless.
A dialogue with Filmmakers should be considered as public consultation is significant in securing the interest of the Film Industry to come up with effective remedies. Before taking the Bill to the Parliament, the Ministry of Information and Broadcasting asked for suggestions from the public. A letter signed by various stakeholders from the media and entertainment faction was presented before the Ministry expressing their dislike and objection to the Government’s proposed amendments. Now the Government has to decide and take further steps while keeping in mind the suggestions and criticism presented before it by the film fraternity.
This article precisely covers what the Government wants to include in the Bill and its impact on the Entertainment Industry if the Bill ever gets passed in Parliament. The Entertainment Industry contributes a lot to India’s Intellectual Property creation. Hence, it is expected from the Government to provide quick redressal to these substantiated concerns.
The authors, Mahima Saraswat and Prashant, are undergraduate law students at Symbiosis Law School, Noida and CPJ College of Higher Studies & School of Law affiliated to Guru Gobind Singh Indraprastha University, New Delhi, respectively.
[1]The Cinematograph Act,1952, Act of Parliament,1952(India).
[2]The Cinematograph Amendment Bill,2021, Ministry of Information and Broadcasting- Government of India.
[3]The Cinematograph Act,1952, § 6(1), Act of Parliament,1952(India).
[4]INDIA CONST.art.19(2).
[5]ILR 1990 KAR 4082.
[6]Appeal (civil) 3106 of 1991.
[7]1971 AIR 481, 1971 SCR (2) 446.
[8]Modi Tightens his grip on media, Reporters Without Borders,2021, http://rsf.org/en/india .
[9] Arun Prabhudesai, ‘Movie Piracy Rampant in India-Ranked 4th Worldwide in Illegal Downloads’, Trak.in, https://trak.in/tags/business/2010/02/17/movie-piracy-india-ranked-4th-in-illegal-downloads/ .
[10]The Copyright Act,1957, §14(d), Act of Parliament,1957(India).
[11]The Copyright Act,1957, § 52, Act of Parliament,1957(India).
[12]The Copyright Act,1957, Act of Parliament,1957(India).
[13]The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Ministry of Electronics and Information Technology Notification,2021 (India).
[14]Priyanka Sharma, ‘Another Blow to Film Fraternity’: Farhan Akhtar, Anurag Kashyap sign open letter against proposed changes to cinematograph Act, The Indian Express,2021, https://indianexpress.com/article/entertainment/bollywood/farhan-akhtar-anurag-kashyap-zoya-akhtar-sign-petition-against-govts-proposed-changes-to-cinematograph-act-another-blow-to-film-fraternity-7380031/.
[15]INDIA CONST.art.19(1)(a).
[16]Global Freedom Scores, Freedom House, 2021, https://freedomhouse.org/countries/freedom-world/scores.
[17]2021 World Press Freedom Index Rankings, Reporters Without Borders,2021, https://rsf.org/en/ranking/2021
[18]Film Fraternity writes a letter to Government for amending Cinematograph Act, The Economic Times, https://economictimes.indiatimes.com/magazines/panache/film-fraternity-writes-an-appeal-letter-to-government-for-amending-cinematograph-act/articleshow/84055497.cms .
[19]The Tribunals Reforms Bill,2021.
[20]Hansal Mehta (@mehtahansal), Twitter ( April 7,2021), https://twitter.com/mehtahansal/status/1379630019513708544?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1379630019513708544%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Findianexpress.com%2Farticle%2Fentertainment%2Fbollywood%2Ffilm-certification-appellate-tribunal-abolished-vishal-bhardwaj-richa-chadha-hansal-mehta-guneet-monga-criticise-the-move-7262324%2F .
[21]R.S. Chauhan, ‘Clamping down on creativity’, The Hindu, https://www.thehindu.com/opinion/op-ed/clamping-down-on-creativity/article17739798.ece .
The Journal of Indian Law and Society 