I do not agree to what you say,
but I’ll defend to the death your right to say it – Voltaire

INTRODUCTION

Voltaire in his quote speaks about defending a person’s right to express himself but seems like; in India, people are more concentrated on infringing the right of freedom of speech and expression guaranteed under the Indian Constitution rather than protecting the same. Whether the tolerance of the people is diminishing or its no more a deal to ban movies, dramas, books, and speeches is a question that needs to be thought upon. Article 19 of the Indian Constitution has provided the Indian citizens with certain fundamental rights which allow them to live their life with liberty. Merely having food, shelter, and clothes to wear doesn’t account for a life with liberty. Those are the basic requirements of living, however, the freedom to speech,  profession, religion forms the basis of human rights. These are the rights which when taken away, takes away the liberty of a person.

Although it’s a free country, there is very little freedom in the hands of citizens when they wish to express their thoughts, opinions or showcase their talent and art. The freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution comes with its own restrictions. This freedom can be restrained under Article 19(2) on the grounds of protecting the sovereignty and integrity of India, to maintain friendly relations with foreign States, public order, decency and morality, and in cases of contempt of court, defamation or incitement to an offence.[1] However, this provision has been misused and twisted in various circumstances and if listed down, one can get acquittance to the vast number of paintings, movies, books, advertisements, and dramas that have been banned because they offended a certain community, the culture of the country or someone’s religious sentiments.

The word “censor” comes from the Latin term censere, which means to assess. Film censorship in India dates back to colonialism, wherein the British introduced the first censorship law in India i.e. the Cinematograph Act, 1918 which came into effect from 1920. The provisions regarding censorship were retained even after India got its independence under the Cinematograph Act, 1952 (“Act”). The Central Board of Film Certification (name changed from censorship to certification) (“CBFC”) or more commonly known as the “Censor Board” is a statutory body under the Act, regulating the public exhibition of films.[2] CBFC has been given the power to decide as to whether a certain movie should be banned or cleared to release. Further, if an applicant is aggrieved by the decision of the CBFC then the applicant can file an appeal with the Film Certification Appellate Tribunal (“FCAT”). This article will be dealing with FCAT and its role in brief.

FCAT CONSTITUION

The FCAT has been established by the Central Government under section 5D of the Act and it hears appeals against decisions of the CBFC.[3] Previously, the appeal from the CBFC’s decision lied directly with the Central Government, more so with the Ministry of Information and Broadcasting, who would after discussing the issue with the relevant ministries pass the final order.[4] This decision of the Central Government would be final and applicable throughout India. However, this procedure failed to generate the confidence in the filmmakers as it lacked the application of mind by an independent body. Pursuant to the case K.A. Abbas v. Union of India[5], the FCAT was established through an amendment in the year 1981 w.e.f. 1^st June, 1983.

The FCAT is situated in New Delhi and is headed by a Chairman who shall either be a retired Judge of a High Court or a person who is qualified to be a Judge of the High Court.[6] The FCAT shall comprise of not more than 4 members who shall be appointed by the Central Government. These members are usually experts such as lawyers, politicians, and bureaucrats, who can effectively judge the effect of the film on the viewers. Currently, Chief Justice (Retd.) Manmohan Sarin is the Chairman of the FCAT and its members are Ms. Bina Gupta, Mr. Shekhar Iyer, Ms. Shaziya Ilmi, and Ms. Poonam Dhillon.[7]

Neither the Act nor the rules lay down any criteria for selection of the members to the FCAT, which in turn leads to arbitrary and subjective selection by the Government. While talking about film certification, to ensure its transparency, qualifications must be laid down so that the members do not end up being the mouth-piece of the government.[8]

WHEN TO APPROACH FCAT

The CBFC under the Act has been given the power to sanction the film for unrestricted public exhibition (“U”), for unrestricted public exhibition but under parental guidance for children (“U/A”), for adults (“A”), or for a special class of persons (“S”). It can also direct certain modifications/alterations in the movie or refuse to sanction the movie, implying that the movie would not be released.[9] Only these orders of the CBFC can be challenged under an appeal to the FCAT. Further, S. 5C of the Act provides that any person who is aggrieved by the order of the CBFC can file an appeal with the FCAT within 30 days of such order of the CBFC.[10]

The Act also provides for a delay in filing an appeal, it states that an appeal can be made even after the expiry of the 30 days if the same is filed within the time frame of another 30 days and only if enough reasons are given in the appeal which prevented the applicant from filing the appeal.[11] However, beyond these 60 days, the FCAT shall not entertain any appeals. Though an exception was created in the case of Ritu Ruhil v. CBFC, Mumbai.[12] The appellant being aggrieved by the order of the Revising Committee, refusing to grant certification, filed an appeal with the FCAT. The FCAT pointed out that the order was received by the appellant on 25^th April, 2018 and the appeal was filed on 11^th July, 2018, the limitation period, including the additional discretion of 30 days, expired on 25^th June, 2018. Thus, it ruled that the FCAT cannot condone the delay beyond 60 days, and accordingly the appeal was dismissed. However, in a writ petition filed in the Bombay High Court, the FCAT agreed to give concession to the appellant and the appeal with FCAT was restored.

REMEDIES AVAILABLE ON APPEAL

As mentioned above, the grounds on which an appeal can be filed with FCAT are limited. These grounds can be divided into three categories, the first category being where an appeal is preferred against the certification order of the CBFC. Whereas on the other hand, the second category includes appeals filed from the order of the CBFC wherein there has been a denial of certification, implying that the movie has been banned. The third category involves filing an appeal against the modifications suggested by the CBFC.

§  Appeal against the certification order of the CBFC

If the appeal falls in the first category, the FCAT may direct the CBFC to change the certification category, with or without any modifications. For instance, the movie 31^st October was granted an “A” certificate by the CBFC, however, on appeal the FCAT directed the CBFC to certify the movie as “U/A” after the modifications suggested by the FCAT were implemented.[13]

§  Appeal against the refusal by the CBFC to certify the movie

In the second category of appeals, the FCAT may either uphold the decision of the CBFC to ban the movie or may direct the CBFC to certify the movie with or without any modifications. For instance, in one of the cases, when applied for certification, the CBFC refused to certify the movie, thereafter an appeal was filed with the FCAT which directed the CBFC to grant an “A” certificate after making a few cuts.[14]

Neither the Act nor the rules prescribe the powers of the FCAT and there are no legal principles that have been laid out which could guide the decisions of the FCAT. Thus, this has led to an arbitrary approach being adopted by the FCAT and the same is evident from its orders. For instance, the movie Lipstick Under My Burkha was initially refused certification by the CBFC.  However, the FCAT ordered the CBFC to grant an “A” certificate to the movie and also suggested a few cuts and muting of a few cuss words to be carried out in the movie. The cuts that were recommended seem quite unreasonable, for instance, a sex scene in the movie was already being reduced by 12 seconds, the FCAT recommended that it should be reduced by another 30 seconds.[15]

In another case, the CBFC refused to grant a certificate to the movie War and Peace, pursuant to which an appeal was filed before the FCAT which directed the CBFC to grant a “U” certificate to the movie once there are two deletions and one addition carried out in the movie. However, on appeal, the High Court held that these modifications recommended by the FCAT as curbing the freedom of speech and expression guaranteed under the Indian Constitution and directed the CBFC to issue a “U” certificate to the movie without any modifications in the movie.[16] Thus, it can be seen that there is a need to lay down legal principles to be followed by the FCAT while passing an order.

§  Appeal against the modification suggested by the CBFC

The third category of appeals, involves an appeal from the order of the CBFC recommending certain alterations/cuts to be made in the movie. The FCAT may either uphold these changes or may overrule them. In one of the cases, the CBFC had granted an “A” certificate to the movie Maadathy – The Unfairy Tale and had suggested 6 cuts to the movie. In an appeal filed with FCAT, it was claimed that these cuts would have an impact on the narrative of the film. In a great relief to the audience and the filmmakers, the FCAT overruled the decision of the CBFC and directed it to grant an “A” certificate without any modifications in the movie.[17]

CONCLUSION

The role of FCAT in balancing the need for certification and upholding the freedom of speech and expression has not been significant. Various loopholes need to addressed such as defining the eligibility of the members of the FCAT, in order to enhance its role. However, there have been instances, wherein the FCAT has stepped in and directed the CBFC to take appropriate measures to ensure that the artist’s creativity is not compromised upon.

Further, in order to compete with the global cinema, it is necessary that the rights of these artists are protected by ensuring that the certification process is eased out. The current certification process limits the risk-taking ability of these artists, as they know that there could be multiple hindrances caused either by the CBFC, political parties, and religious denominations, and it would be stuck in litigation for a really long period, that too without knowing the outcome of the same.

Moreover, the Covid-19 outbreak has brought a halt to the theatrical releases and the movies that were scheduled to be released in the theatres are now being released on the OTT platforms. Currently, these OTT platforms are not governed by the Act and hence, there is no need to obtain certification from the CBFC, thus making the procedure of releasing content simpler. Thus, it is high time that the certification bodies take a cue by adhering to their role of merely certifying the movies and then leaving it upon the viewers to decide what they wish to watch.