INTRODUCTION
The latest amendment to the Cinematograph Act of 1952 sparked outrage in the film industry. Concerns over the draft Cinematograph (Amendment) Bill 2021 began to circulate shortly after the Centre unveiled it, with filmmakers and performers denouncing the bill. Previously, under the 1952 Act, the Central Board of Film Certification (CBFC), a body in which everyone is appointed by the Government, had the final authority to delete objectionable or politically subversive content. The revised draft includes a clause allowing the Government to request re-certification of a film that has already been certified by the CBFC. The document also proposes piracy penalties, the issuance of perpetual certificates, and age-based certification.
PROVISIONS OF DRAFT CINEMATOGRAPH (AMENDMENT) BILL, 2021
1. Age-based certification: The proposed Bill correctly highlights the necessity for further age-based categorization of the category “unrestricted public exhibition.” To that end, the Bill identifies and proposes subdividing the U/A category into U/A 7+, U/A 13+, and U/A 16+, as well as amending Sections 4(1)(i) (Examination of Films), 5A(1)(a) (Certification of Films), and 6(2)(b) (Revisional Powers of the Central Government). This will allow filmmakers more freedom in producing and customizing material to different age groups.
2. Provisions against film piracy: In most situations, piracy begins with unauthorized copying in movie theatres. The Cinematograph Act of 1952 currently contains no enabling measures to combat film piracy. Provisions against piracy are desperately needed since the film industry is expected to lose about Rs. 22,000 Crores and 60,000 jobs each year as a result of piracy. The administration has suggested including Section 6AA, which targets piracy or prohibition of unauthorized recording. Accepting the standing committee’s findings, they decided on a minimum sentence of three months, which can be extended up to three years. The administration also proposed a 3 lakh fine but eliminated the maximum limit of Rs. 10 lakh. It can now be expanded up to 5% of the audited gross production cost, or both.
While the clause successfully addresses audio-visual recording device piracy, it fails to combat other forms of piracy, namely data copying from original storage medium and dissemination. By including the proposed amendments in this Section, it appears that an aggrieved party will have recourse under two statutes, the Cinematograph Act and the Copyright Act. There is a distinction between the Bill and the Copyright Act, in which the latter continues to allow for a lower punishment than the Bill for the same offense.
3. Revisionary power of Centre: According to the draft of the Cinematograph Bill, the Centre would have revisionary powers if Section 5 B (1) is violated (principles for guidance in certifying films). If the case calls for it, the Central Government will now have the authority to overturn a Central Board of Film Certification (CBFC) decision and order the Chairman of the CBFC to re-examine a film.
a) Death of Creative Freedom: While freedom of speech and expression under Article 19(1)(a) of the Indian Constitution is not unlimited and may be curtailed in the larger interest of the State and public, such limitations must be made in line with Article 19(2) of the Indian Constitution’s reasonable restrictions. In accordance with the provisions set out in Article 19(2), which is reproduced in Section 5B(1) of the Cinematograph Act, 1952, the Central Government also published instructions for CBFC’s follow-up to the approval of films for public display, subject to Section 5B(2) of the Cinematograph Act, 1952, for sanctioning films for public exhibition. Conferring such power on the Central Government to revisit a film that has already been certified by the CBFC contradicts the essence of the Supreme Court’s ruling in Union of India v. K.M. Shankarappa, in which it abolished the Central Government’s revisional powers under Section 6(1) extending to films which have already been certified as unconstitutional.
b) Role of the Central Board of Film Certification: The CBFC, an autonomous body, is already authorized to reject certification of a film for public display if it violates Section 5B(1). Notably, the members of the CBFC, examination committee and advisory panels are directly chosen by the Central Government, and the Act makes no provisions for establishing any criteria or qualifications for such appointments to guarantee that competent members are recruited. The appointment of members by the Central Government eliminates the need for the Central Government to have extra overriding power in this aspect.
Revisionary powers with the Central Government allow the Government to manipulate or stifle free expression. Revisional power with the Central Government, as proposed, means an extra layer of direct Government censorship over and above the CBFC’s current procedure. Grant of such revisionary power will also cause an unnecessary delay in the certification process since the proposed amendment makes no mention of any method or time frame for dealing with such problems.
The proposed amendment is also silent on the consequence of certification in the event that the CBFC upon such direction arrives at the conclusion that no violation of Section 5(B)(1) has taken place. The proposed amendment is likewise unclear on the consequences of certification if the CBFC concludes that no violation of the Section occurred as a result of such guidance.
4. Eternal Certificate: Currently, a CBFC certification is only valid for ten years. However, the proposal offers to certify films in perpetuity, despite the fact that it is already directed by the executive authority.
CRITICISMS OF THE BILL
1. CBFC: The Government must believe in CBFC’s power. Within the certification board, there should be an advisory or grievance cell.
2. Piracy: The present legislation penalizes piracy and implies that there is no need to add new penalties. However, adequate exceptions for fair use and derivative work unique to films must be developed. The crime must be non-cognizable and bailable.
3. Audio-Visual Media Council: A self-regulating body, similar to the Press Council of India or the Advertising Standards Council of India, can exist. It will “address and adjudicate on any public grievances or complaints regarding films, TV or OTT series, etc.”
4. FCAT should be reintroduced: Restore the Film Certification Appellate Tribunal (FCAT), which provides filmmakers with inexpensive and accessible remedies.
5. Need for a precise definition of “Public Display”: The Cinematograph Act must be modified to provide a clear definition of “Public Display” and to include only commercial films with significant capital investment and revenue models connected to theatre screenings under its scope.
AMLEGALS REMARKS
The preservation of artistic freedom and the reduction of regulatory compliance are both critical changes for the film business. However, the suggested modifications in the draft amendment Bill do not appear to alleviate either compliance difficulties or freedom of speech and expression in the country through filmmaking. As a result, given the delicate nature of the film industry, the Union Government should limit its engagement in it. There are currently sufficient checks and balances in place in the shape of guidelines developed by the Union and reviewed by the CBFC.
A filmmaker cannot live in constant worry that his film, even after it has been approved for screening, may be removed from the screen because someone doesn’t like what they see in it. It is one thing to enact anti-piracy legislation, but it is quite another to try to open a door that should have been closed long ago. The Government would be wise to limit its participation in film certification and rethink enacting this change.
– Team AMLEGALS, assisted by Ms. Tanvi Jain (Intern)
For any query or feedback, please feel free to get in touch with chaitali.sadayet@amlegals.com or arushi.vyas@amlegals.com.
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