On 25 February 2021, the central government notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules or the “new IT Rules”.
Since then, these new rules have been vehemently criticised by several IT law experts, their legality has been challenged by various digital media portals before multiple high courts, and most recently, they have been termed “contrary to international human rights law” by the United Nations Special Rapporteur.
However, this did not deter the Union government from rolling out another proposed legislation to broaden its net of content censorship and give overreaching powers to the Union Ministry of Information & Broadcasting to stifle cinematic expression on ambiguous grounds.
The proposed Cinematograph (Amendment) Bill, which is now open for public comments, goes a step further. In its attempt to tighten its grip over creative freedom, it proposes to overturn an established judicial precedent that says the central government cannot sit in appeal or exercise revisional powers against films already cleared by the censor board.
By proposing changes to the Cinematograph Act, the Union government has pulled “New IT Rules” against films. This comes across as another step towards institutional deterioration of freedom of speech and expression, making the central government what great filmmaker Adoor Gopalakrishnan called a “super censor”.
Making Centre a 'Super Censor'
The Amendment Bill adds a proviso to Section 6 of the Cinematograph Act. As per the new proviso, the central government is now empowered to direct the censor board Chairman to re-examine a film that has already been cleared and released.
“...on receipt of any references by the central government in respect of a film certified for public exhibition, on account of violation of Section 5B(1) of the Act, the central government may, if it considers it necessary so to do, direct the Chairman of the Board to re-examine the film.Proposed amendment to Section 6
Section 5B(1) of the Cinematograph Act lays down grounds on which the censor board can restrict the public exhibition/screening of a film. These grounds are similar to the reasonable restrictions to free speech under Article 19(2) of the Constitution: “interests 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 word “any reference” in the new proviso means that the Centre can invoke its powers to order re-examination of a film upon a request/complaint filed 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 makers of the concerned film to make a representation. Such unfettered power can be exercised under ambiguous and broad grounds of “indecency” or “public order”.
Going Against Established Law
By proposing a new proviso to Section 6, the Union government has attempted to overturn a long-established judicial precedent on film censorship.
In 1990, in the case of KM Shankarappa vs Union of India, the Karnataka High Court had struck down Section 6(1) of the Cinematograph Act as unconstitutional. The high court had said that the central government cannot exercise revisional powers in respect to films that are already certified by the Board.
Then, the central government appealed against this order before the Supreme Court. However, the apex court refused to interfere with the Karnataka High Court’s order. In a similar case of KA Abbas vs Union of India (1971), where certain provisions of the Cinematograph Act were challenged as unconstitutional, the Supreme Court had said:
“We express our satisfaction that the central government will cease to perform curial functions through one of its Secretaries in this sensitive field involving the fundamental right of speech and expression. Experts sitting as a Tribunal and deciding matters quasi-judicially inspire more confidence than a Secretary and therefore, it is better that the appeal should lie to a court or Tribunal.”Supreme Court
While completely rejecting the claim of the Union government that releasing certain films would create a law and order problem and thus, the Union government should be allowed to have revisional powers, the apex court said:
“We fail to understand the apprehension that there may be a law and order situation. 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 law and order is maintained. In any democratic society, there are bound to be divergent views. Merely because a small section of society has a different view, from that taken by the 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.”Supreme Court
The Union government has given no explanation, factual developments, or reasoning to go against decades-long judicial precedent and revive its revisional powers. The law and the Supreme Court had clearly contemplated the Film Certification Appellate Tribunal (FCAT), and not the Union government, to be the appropriate body to exercise revisional powers against the censor board’s decisions.
The decision to revive the central government’s revisional powers comes just a couple of months after its own decision to abolish the FCAT under the Tribunal Reforms Ordinance, 2021. This exposes an orchestrated strategy to institutionally fracture creative expression and make it subject to the whims and fancies of the government’s own hegemonic sensibility.
The FCAT was a cheap and quick remedy for the aggrieved filmmakers to challenge the decisions of the censor board. Its abolition will now expose such filmmakers to expensive and strenuous litigation before a high court, subjecting them to an unjustified burden to fight for their freedom of expression.
Prominent filmmakers heavily criticised the Union government’s decision to abolish the FCAT. National award-winning filmmaker Vishal Bhardwaj lamented on Twitter by posting, “It’s a sad day for cinema”.
Free Reign of FIR Brigade
The proposed changes to the Cinematograph Act will further embolden the fringe groups, or the “FIR brigade”, that file complaints against any film they deem as an “attack on their religion/caste”.
The revival of the Union government’s revisional powers would make it easier for such fringe elements to harass the filmmakers and actors. Now, they would not have to take the pains of filing a criminal complaint at a police station or approach the court. They can simply say a word to the Union government, and it “will take care of the rest”. Instances like Padmaavat or Tandav might cease to remain standalone cases and become more routinised.
Moreover, the ambiguous and broad grounds on which the Union government would be able to exercise its new power would also create a “chilling effect” within the film fraternity.
The filmmakers and actors might be forced to “self-censor”, dilute, or simply cancel projects in fear of the Union government, invoking revisional power, and to avoid expensive litigation that might follow.
Therefore, the proposed amendments to the Cinematograph Act mirrors the concerns that plague the digital media entities under the New IT Rules. This is virtual handcuffing of content creators that will have a long-lasting impact on the freedom of speech and expression in India.