A significant move toward film censorship

TLDR: The government has signalled its intent to amend the laws to give itself the power to block the release of a movie already certified by the film board. Taken together with the dissolution of a key tribunal in April, it marks a serious blow to creative freedom—and our right as citizens to watch what we please. 

What’s this new move? 

The existing law: The Cinematograph Act governs the certification of films. The law, in essence, balances the right to creative freedom—as guaranteed by the right to free expression—with constitutional limits on that right. So it declares:

“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.”

The film board & tribunal: The law also establishes the Central Board of Film Certification (CBFC) which currently decides whether a film meets the criteria of the law—and approves it for release. And in 1983, the government set up the Film Certification Appellate Tribunal (FCAT)—which would act like a court of last appeal for filmmakers unhappy with the decisions of the CBFC.

The legal history: Now, other parts of this same law also give the government “revisional powers”—which allows it to step in and block the release of a film—even after it has been approved by the CBFC. But back in 1991, Karnataka High Court disagreed, and said the government has no right to do so once FCAT had weighed in. The case went to the Supreme Court which upheld the decision in 2000:

“Once an expert body has considered the impact of the film on the public and has cleared the film, it is no excuse to say that there may be a law-and-order situation. It is for the concerned state government to see that the law and order is maintained.”

And the Court sent a strong signal that a film can’t be blocked or banned once it had been reviewed by FCAT: 

“In any democratic society there are bound to be divergent views. Merely because a small section of the society has a different view from that as taken by the [FCAT] tribunal, and choose to express their views by unlawful means would be no ground for the executive to review or revise a decision of the tribunal. In such a case, the clear duty of the government is to ensure that law and order is maintained by taking appropriate actions against persons who choose to breach the law.”

The new move: The government plans to add a new clause to the Cinematograph Act. Here’s how it will work. Say, some group complains that a movie violates anything mentioned in that key clause—i.e. national security, public order, decency etc. The government can then choose to overturn the certification given by the CBFC—and send a movie back to the board for further review.  

Wait, isn’t that against the SC decision?

Yes, it violates the spirit of the 2000 ruling. But, technically speaking, that judgement referred to FCAT. 

Goodbye FCAT: The government abolished the tribunal in April by issuing an ordinance—after a bill doing the same was rejected by Parliament in February. And it stripped the Cinematograph Act of all references to the tribunal. Now, filmmakers who are unhappy with the CBFC’s decision will have to go to the High Court to get relief. 

Irony alert: The move came on the heels of a Supreme Court ruling in 2020—which directed the government to strengthen various tribunals—which were woefully understaffed and almost non-functional. Also a big concern: The government’s excessive control over these tribunals which violates the constitutional separation of powers between the judicial and executive branches. But the government instead got rid of FCAT and eight other tribunals in the name of reform.

Point to note: FCAT has played a key role in rescuing a number of movies from the censor board—which is often led by political appointees. Example: Pahlaj Nihalani who blocked the certification of ‘Lipstick Under My Burkha’ for “sexual content, abusive words and audio pornography.” FCAT cleared it for release with an adult rating, strongly stating:

“The FCAT found that there was no violation of guidelines as neither the visuals nor the dialogues are contemptuous of racial, religious or other groups. There was no targeting of women of certain community or religion.” 

Also rescued by FCAT over the years: ‘Bandit Queen’, ‘Udta Punjab’, ‘Babumoshai Bandookbaaz’, ‘Kaalakaandi’ and ‘Rangeela Raja’.

So what does this all mean?

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