In February 2021, the Central government notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, better known as the ‘new IT rules’. These rules have been heavily criticised by many IT law experts and their legality has been challenged by various digital media portals before multiple high courts. Most recently, the rules have been termed ‘contrary to international human rights law’ by the United Nations Special Rapporteur. And now the government has rolled out another proposed legislation which is aimed at broadening the Central government’s control over cinematic content; the proposed legislation gives the Information and Broadcasting ministry overreaching powers to censor film content on ambiguous grounds.
The proposed Cinematograph (Amendment) Bill, which was open for public comments till July 2, is being seen as an attempt to tighten the government’s control over creative freedom and freedom of expression, as it seeks to overturn an established judicial precedent that says the Central government cannot sit in judgment or exercise revisional powers against films already cleared by the censor board. By proposing to amend the Cinematographic Act, the government apparently wants to bring film content under the ‘new IT rules’. This is being seen as another step towards curtailing freedom of speech and expression, making the central government a ‘super censor’.
Since the proposed amendment proposes significant changes to the existing mechanism for classifying films, filmmakers and experts have criticised the move on several grounds. One of the grounds of criticism is that the Central Board of Film Certification (CBFC) has a robust mechanism for film certification and there is no need to fix the system which is working quite well. Another criticism is that the proposed changes ignore the suggestions of reports by two committees of experts on CBFC reform.
The Cinematographic Act, 1952, prescribes a rigorous and well-established mechanism to certify films that can be shown in cinema halls and at other public places under three broad categories: unrestricted viewing (U), unrestricted viewing but under parental guidance for children under the age of 12 (U/A) and restricted to adults (A). There is another category which is restricted to a class or a profession (S).
Four changes proposed
The proposed bill aims to make four important changes to the certification process: it proposes to bring in three additional age-based categories in the existing U/A category; it proposes to keep the validity of a censor certificate in perpetuity rather than requiring renewal every ten years; it also proposes enabling provisions to check piracy in the Act itself; and most importantly, it proposes the addition of a proviso to sub-section (1) of section 6 of the Cinematograph Act, 1952, 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, if the government feels that it does not conform to the guiding principles under section 5B(1). There is no denying that India needs better piracy rules and age-based certification, but it’s the revision part that the film industry sees as problematic.
Section 5B (1) lays down grounds on which the censor board can restrict the public exhibition or screening of a film. These grounds are similar to the reasonable restrictions to free speech under Article 19(2) of the Constitution – ‘interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement of any offence’.
The problem with the new proviso is that the Centre can invoke its powers to order re-examination of a film on receipt of a request or complaint by any person, no matter their political or vested interests. Moreover, the government can do so without giving any reasons in writing, or providing an opportunity to the filmmaker to make a representation. Such powers can be exercised under ambiguous grounds like “indecency” and “public order”.
Power over CBFC
Censorship of films in India is already under strict control of the government, which enjoys significant control over the certification process: all CBFC members, regional officers and the advisory panel are appointed by the Central government, which also decides the guidelines based on which the CBFC classifies films.
The government also has the power to suspend, change or revoke a film certificate under section 5E and section 6(2). However, the proposed amendment allows the central government to resend a certified film to the CBFC seeking a review, on the grounds of national security and or public order, among other things. This is being seen as the government seeking to act as a ‘super censor’ by reviving its revisional powers.
Incidentally, the decision to revive the Central government’s revisional powers comes just two months after the government abolished the Film Certification Appellate Tribunal (FCAT), under the Tribunal Reforms Ordinance, 2021, which was the cheap and quick remedy for the aggrieved filmmakers to challenge the decision of the censor board. The abolition of FCAT will now compel aggrieved filmmakers to take recourse to an expensive and strenuous litigation process before a high court, thus subjecting them to an unjustified burden to fight for their creative freedom as also the freedom of expression.
Fringe elements' interference
The proposed changes to the Cinematograph Act, filmmakers fear, will further embolden ‘fringe elements’ to file complaints against any film they deem as an ‘attack on their religion or caste’. This could have an adverse impact on the content of films as actors and filmmakers, in fear of the government’s revisional powers and to avoid litigation, might be forced to self-censor or ‘dilute’ content of their films.
Apparently, the amendments to the Cinematograph Act, are aimed at creating a level playing field for all content, regardless of the medium, as they follow a series of changes proposed by the I&B ministry to regulate different media like digital, OTT platforms and cable television. But can films, which are certified and classified by the censor board, be clubbed with online content and television, without making some basic distinctions? Coming just two months after the government decided to dissolve the FCAT, a body which used to hear appeals of filmmakers aggrieved by CBFC orders, the new proposed provision is being seen as the coming into force of a ‘super censor’, adding one more layer of censorship to the already existing process.
The author is an independent senior journalist