Table of contents

• Introduction
• Key features

• Prevent piracy
• Sub-divide UA category into age based
• Revisional Powers of the Central Government
• Validity of Certificate
• Major issues raised
• Leading Case laws
• M. Shankarappa v. Union of India (1990)
• Union of India v. K.M. Shankarappa (2001)
• A.Abbas v. Union of India and anr.
• Indibily Creative Private Limited & others v. Government of West Bengal & others (2019)
• Suggestions
• Colour coding of certificates
• Additional category of U/A 4+
• Define ambit of ‘public exhibition’
• Removal of revisionary power of Central Government
• Term ‘Author’to be replaced by term ‘Owner of Copyright’  
• Establishment of Film Certification Appellate Tribunal

• Conclusion

Introduction

After considering the report made by the standing committee, Benegal Committee and Mudgal Committee, the Ministry of Information and Broadcasting has introduced The Cinematograph (Amendment) Bill, 2021. Filmmakers around the country are unhappy with the bill for which the government has invited public opinion. The bill primarily deals with the piracy, sub-division of U/A category and prohibition of audio-visual recordings without written authorisation of author. The prime objective of this act is to certify and regulate the cinematographic content.

Prashant Umrao, Standing counsel in Supreme Court tweeted ‘Another blow on film fraternity, Ministry of Information and Broadcasting has proposed new amendments to the Cinematograph Act, which empower Central Government to revoke or recall certificates of films that have already been cleared by Censor board.’

Many filmmakers such as Zoya Akhtar, Hansal Mehta, Kamaal Haasan and others are disappointed and have raised their voice against this bill. There is an ongoing debate over this bill because of the revisionary power granted to the Central government whereas, in a plethora of cases such as K.A. Abbas and K.M. Shankarappa the court is of the view that Central Government should not interfere in the working of Central Board for Film Certificate.

Key features

• Prevent piracy– With the advancement in technology the cases of piracy have increased drastically. In The Cinematograph Act, 1952 no provisions are present to piracy or to punish it. However, The Cinematograph (Amendment) Bill, 2021 proposes:

• Insertion of Section 6AA– This section prohibits any unauthorized audio-visual recording without written authorization of the author.
• New Sub-section (1A) in Section 7– Punishment on contravention to Section 6AA, if any person contravenes section 6AA provision then he shall be punished with imprisonment for a term not less than 3 months which can be extended to 3 years and fine of not less than 3 lakh which can be further extended to 5% of the audited gross production cost or both.
  • Further, Sub-divide UA category into age basedas U/A 7+, U/A 13+ and U/A 16+. This is suggested to keep a check on the contents of the film so that young minds are not polluted at an early age.
  • Revisional Powers of the Central Government–
• Removal of Section 6(1) in the principal act.
• Adding  proviso to Section 6(1)– It empowers Revisionary power to Central Government to direct chairman of CBFC (Central Board for Film Certificate) on the violation of Section 5B(1) i.e., reasonable restrictions on freedom of speech and expression as provided under Article 19(1) of Indian Constitution.
  • Validity of Certificate– Amendment to Section 5A(3), Currently the certificate issued by CBFC is valid for 10 years, the bill proposes it to be valid for perpetuity.

Major issue raised

Government is taking away the complete autonomy of CBFC by empowering the central government to further certify any film. Supreme Court decision in the case of Union of India v. K.M. Shankarappa (2001) states that the government cannot intervene in the decision made by CBFC because of the rule of law when a body has been established for a particular purpose then another organ shall not interfere into its working. Thereby, the proposed amendment is in issues with the Supreme Court judgement.

Leading Case laws

•   K.M. Shankarappa v. Union of India (1990)– By Karnataka High court Section 6(1) of The Cinematograph Act, 1952 was held to be unconstitutional. This decision was upheld by the apex court in the case of Union of India v. K.M. Shankarappa (2001).
•   Union of India v. K.M. Shankarappa (2001)– Supreme Court held Section 6(1) of The Cinematograph Act, 1952 unconstitutional because of the fact that when the government chooses to establish a quasi-judicial body to take decisions and certify films then the government cannot interfere in the working of such a body. Any provision made for such interference would be against the rule of law moreover, will be violative of the basic structure of the Constitution.

K.A. Abbas v. Union of India and Anr. (1970) – Supreme Court in this case held that pre-censorship in India is justified.  In this case the petitioner was aggrieved by the decision of CBFC which had suggested certain cuts in the movie ‘A Tale of four cities’. Petitioner had no option other than to appeal to the Union government against the decision of CBFC. Therefore, the court suggested establishment of a Film Appellate tribunal, an independent tribunal. The court is of the view that when a separate body has been established then the government should not interfere in the functioning of the established body because of the reason that censorship involves a very crucial question of Fundamental right of freedom of speech and expression.  It also ensured a reasonable time limit for granting censorship. However, the Film Appellate Tribunal is now abolished by Tribunals Reforms (Rationalisation and Conditions of Service) ordinance, 2021.

•   Indibily Creative Private Limited & others v. Government of West Bengal & others (2019)– In this case the court pointed out the importance of the fundamental right of freedom of speech and expression. Compensation was granted to the filmmaker when the film was not allowed to run on screen despite CBFC granting certificate to it. It was held to be a violation of the fundamental right of freedom of speech and expression.

Suggestions

• Colour coding of certificates– Certificates which have U/A or A certification need to be coded in a particular colour which will help the viewers to easily identify the category of film due to the reason that colours are more appealing and eye catchy.
• Additional category of U/A 4+ – An additional age criteria is suggested because it will also cover the age group between 4-7 years of age. Children in this age group have different kinds of need and care required then the children in the 7+ years of age group. This will help filmmakers to provide quality content while keeping the needs of the children in mind.
• Define ambit of ‘public exhibition’– The bill has introduced a category of ‘unrestricted public exhibition’ however, it has skipped to define the ambit of ‘unrestricted public exhibition’. Therefore, a clear scope of the term needs to be defined.
• Removal of revisionary power of the Central Government– The bill Section 6(1) will empower the Central Government to direct the Chairman of CBFC. However, In the case of Union of India v. K.M. Shankarappa, the apex court of the country has struck down the power of the Central Government to direct CBFC on the ground that it would be considered against the rule of law.  
• Term ‘Author’to be replaced by term ‘Owner of Copyright’  – The term ‘author’ shall be substituted with the term ‘Owner of Copyright’  which will provide wider ambit to piracy and prevent the piracy at greater extent.
• Establishment of Film Certification Appellate Tribunal – This will provide a door for aggrieved filmmakers to appeal before proceeding ahead to High court.

Conclusion

Although there are already adequate safeguards present but Government is proposing complete control over media and censorship. The Cinematograph (Amendment) Bill, 2021 and Supreme Court judgement in the case of Union of India v. K.M. Shankarappa (2001) both are contrary to one another. This entire bill might handicap the ability of filmmakers by hanging an additional sword of getting permission by the Central Government. Filmmakers have invested a huge amount of money and time in making any film. Their creativity to portray their thoughts on screen will be jeopardized if they are always under a constant threat of getting their film removed from screen even after its release. However, there is another side of the coin which says that the Union Government is only asking the board to reconsider and review its decision; it is in no way harming the fundamental right of freedom of speech and expression granted to citizens of India. The Central Government is concerned with the public peace and sovereignty & integrity of the nation which makes it essential for the Government to have revisionary power.