Indian Cinema and Judiciary

Introduction:-

Cinema is a form of artistic expression of thoughts, tales, and sometimes views, often influenced by reality that is frequently music-based, fascinated, enchanted, or simply entertained. There are hardly any other mediums of expression that can literally assert hostile degrees of insidious power and presence in our everyday lives. Since the evolution of the human civilization, the mankind had started pursuing for the mediums of entertainment to provide relief from their daily routines. The activities that brought the solace included singing, dancing, sports, playing, and films. While all the events had their appeal, the films had made something exceptional. Films or cinema not only offered entertainment for the viewers, but also manifested the minds of the viewers and led them to believe what the director wanted them to believe. Cinema or motion picture was defined as the art of colorful moving images. Since its inception, cinema has been one of the most important tools for expressing ideas. It is a miniature of the social values and the prevailing trends of society. It has served as a source of ideas and values for transformation and revolution. This offers a forum for society to look forward to positive transition introspection.[1] In the words of Justice Clarke[2]: “It cannot be doubted that motion pictures are significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of thought which characterizes all artistic expression. The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform”.

The advent of motion pictures in India began with an exhibition of the Lumiere cinematograph in 1896 in Bombay. With the increasing popularity of the film medium, cinema halls were constructed in the major cities, and travelling showmen brought the new form of entertainment to many of the rural areas around the turn of the century. In December, 1912 the first film made in India, “Rajah Harischandra,” was shown in Bombay. Since then, the Indian film industry had started to grow in an unprecedented manner, now by ending up in making a billion dollar market. Considering the magnitude of the power and effect the cinema has on its audience, since the colonial times the state considered it necessary to control this means of expression in order to limit its misuse. The practice of imposing restrictions has come to be called as censorship. Moreover, with the passage of time new issues are also being arisen with aspect to the field of cinema. One of such is the copy right issue being faced by the Bollywood and the legal issues arising from such infringements. Another Issue is regarding the tussle between the Freedom of Speech and Expression guaranteed underArt.19 (1) (a) of the Constitution and the State’s action of Censorship. In this paper, I will focus on the legal provisions, Court Rulings, Reports of various committees and commissions on the issues being faced by the Indian Cinemas and conclude by advancing some feasible suggestions.

Freedom of Expression and Censorship:-

Freedom of speech and expression is one of the most hallowed freedoms granted by the Constitution of India. It’s the idea of being able to talk openly. It is often seen as an important principle in liberal democracies.[3] Freedom of speech and expression is one of the most hallowed freedoms granted by the Constitution of India. It’s the idea of being able to talk openly. It is often seen as an important principle in liberal democracy. Article 19(1) (a) of the Constitution provides that all citizens have the right to freedom of speech and expression. It has been generally agreed that cinema, as a mode of expression of feeling, is perceived in accordance with the protection contained in article 19(1) (a). Nevertheless, Article 19(2) allows for fair limitations on the rights granted under Article 19(1) (a).[4] However, Article 19(2) lays down reasonable restrictions on the freedom guaranteed under Article 19(1) (a). Reasonable restrictions which can be imposed over these rights can be on the grounds which include 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 to an offence”.[5]The same restrictions are articulated under the Cinematograph Act under which guidelines are laid down on the basis of which film certification is to be done.[6] Regulatory power over cinema is vested to the Union Parliament under Entry 60 of the Union List of the VII Schedule. The states enjoy limited jurisdiction with regards to regulation of motion pictures under Entry 33 of the State List.

Cinema in India is regulated under the Cinematograph Act of 1952. The Act makes provision for the certification of cinematograph films for exhibition and for regulating exhibition by means of cinematographs.[7] Such regulation is also called as censorship. The films are generally censored to monitor for different levels of social and political problems, the showing of which can be conceived as alarming to people. Crime, pornographic content, language misuse, alcohol usage, violent material, radical material and abuses of human rights are important causes that fall under censorship. There is a very limited scope of censorship in India, under the Cinematograph Act of 1952. The Board has nowhere in the Act been granted the authority to censor the motion pictures beyond the specific conditions provided for under the reasonable restriction except as provided for in section 5(B) of the Act. Only if the motion picture or the part / parts of the motion picture contravene section 5(B) of the Act will the Board order the applicant to review and change the film’s objected portion.[8] In February 1960, the Indian Ministry of Information and Broadcasting formulated more detailed guidelines for the censorship and certification of motion pictures. These rules were promulgated as the Cinematographic Censorship rules. Under the heading “Application of General Principles”, a film was not to be certified for either restricted or unrestricted viewing if it deals with the relations between the sexes in such a manner as to[9]:

(I) lower the sacredness of the institution of marriage;

(ii) Suggest that illicit sexual relations are ordinary incidents of life and not to be reprobated;

(iii) Depict-

(a) Rape, premeditated seduction, or criminal assaults on women;

(b) Immoral traffic in women;

(c) Soliciting prostitution or procuration;

(d) Illicit sexual relations;

(e) Excessively passionate love scenes;

(f) Indelicate sexual situations;

(g) Scenes suggestive of immorality

It should be noted, however, that not all exhibitions of motion pictures in India are necessarily subject to the strictures of the Cinematograph Act. On the contrary, the Act provides that the central government may exempt “the exhibition of any film or class of films” from the terms contained therein or from the Censorship Rules, subject to certain conditions and restrictions. The primary beneficiaries of this exemption are recognized film societies and cultural groups organized by foreign embassies in India who now may view films which are not subject to expurgation by the censorship authorities and may be exhibited without the need of a certificate[10].

Nevertheless, the powers bestowed on the CBFC under the Act have been frequently misused since, on a variety of occasions, it has gone beyond its regulatory authority to govern cinema, which is evidently in breach of the basic principle of freedom of thought and expression. It is important to remember that the authority of the Board under the Act applies only to the supervision of the film by way of certification. Ideally, the primary and only responsibility of the CFBC would be to ensure that the proper exhibition certificate is issued to films subject to fair scrutiny. In many cases, however, the stance taken by the Central Board of Film Certification was highly questionable and one that attacked the very basis of the freedom of speech and expression.

In the 1960s, following intense criticism of the Central Board of Film Censors (‘Censor Board’), the Indian government instituted a Committee to examine film censorship laws, headed by Justice GD Khosla. The Khosla Committee observed that, by a ‘strange inversion’, the Censor Board had adopted the same guidelines which the Raj had used to safeguard ‘the dignity of the white people’. The Committee found that inflexible censorship policies were dissuading filmmakers from tackling provocative political and sexual themes. The Committee concluded that some the Censor Board’s practices were in violation of Article 19 of the Constitution of India, and were thus ‘unduly constrictive’ of artistic freedom.[11] This was followed by several Judicial Interpretations on Freedom of Speech and Expression v.Censorship.

Judicial Pronouncements on Censorship:-

It has already been noted above that the issue of the legality of censorship requires an interaction between Article 19(1) (a) which guarantees freedom of speech and Article 19(2) which provides for a fair restriction of that right. According to the Indian Constitution for restricting the exercise of rights pursuant to Article 19(1) (a), the courts have held that the restriction must be enforced by a valid law which must be fair, reasonable,[12] and must be closely linked to purposes mentioned in the respective sub-clauses of Article 19.[13]

With respect to the extent of the restrictions, the Court unequivocally held that the restriction had to be read explicitly and strictly. Because restrictions are in the form of limits on the exercise of the right; they are required to be treated with skepticism, thus putting a heavy burden on the authorities who try to enforce them.[14] The Constitution set out only the grounds for enforcing limitations, thereby granting the courts the power to determine if the restriction imposed was compatible with the purpose of the law.[15] By wielding such authority, the courts had from time to time corrected the misuse of executive actions and had balanced the Censorship with the freedom of speech and expression. Some of the decisions of the court are as follows:-

In K.A.Abbas v. Union of India[16], Chief Justice Hidayatullah has for the first time formulated certain guiding principles of censorship in India. The Court held that censorship of films and their classification according to age groups constitute a legitimate exercise of power in the interests of public morality, dignity, decency etc. It is not inherently a violation of freedom of speech and expression. The most relied on part of the decision was the conclusion that a person reading a book or other writing or hearing a speech or seeing a painting or a sculpture is not as profoundly moved as a view of a film. Consequently, the consideration of the latter on a different footing is also a valid classification. Besides, the court also offered the reason for imposing a pre-censorship. This finding of the Court was the reason provided by all the Governments for enforcing restrictions and censoring the films.

In S.Rangarajan v. P.Jagjivanram[17], The Supreme Court has zealously upheld freedom of expression. In this famous case, the Supreme Court overturned the judgment of the High Court of Madras, which rescinded the U certificate awarded to the film Ore Oru Gramathille. This film, based on the crucial aspect of the government’s policy of reservation, was seen by the High Court of Madras as posing a theme that could cause widespread unrest and problems with law and order in the state of Tamil Nadu. However, when the case was brought before the Supreme Court as an appeal, the Court demolished the contention of the State that the film should be denied a U certificate on fear that it could generate a public stir. The Court held that, “If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and   protect the freedom of expression”.

In LIC v. Prof.Manubhai D. Shah[18], The Supreme Court has again intervened to secure the freedom of expression of the creator in Prof. Manubhai. The filmmaker produced a documentary on Bhopal Gas Tragedy, which won the coveted Golden Lotus Awards. However, when the time had come for its release in India, the national television channels declined to air it citing opposition from the political parties. The Court rejected the argument and held that just because the documentary is critical of the Government, there is no basis to refuse publication of the documentary.  The Court made it clear that “subject to Article 19(2), a citizen has a right to publish, circulate and disseminate his views to mould public opinion on vital issues of national importance. Hence, any attempt to thwart or deny the same would offend Art. 19(1) (a). Under such circumstances, the “burden would, therefore, heavily lie on the authorities that seek to impose them to show that the restrictions are reasonable and permissible in law“.

In Phantom Films (P) Ltd. v. Central Board of Film Certification[19], The Board refused to certify the film “Udta Punjab” which is based on the drug threat in the state of Punjab. Besides, refusing to certify, the Board suggested almost 13 film cuts as a mandatory measure to seek certification. However, on appeal by the filmmaker, the High Court of Bombay criticized the Central Board of Film Certification for its conduct and inadequate handling of the matter. The Court has made a very critical point that the Board is not automatically empowered to censor films. The term censor is not included in the Cinematography Act. The Board may make changes to the film, but this power must be exercised in compliance with the constitutional guarantee and the orders of the Supreme Court. It can be rightly assumed that the decision of the Court in this case would certainly serve as a landmark which could pave the way for the long-standing reformation of the Certification Board. It can be seen that the Board has wrongly expanded its powers, which were in fact restricted to the approval of films for exhibition purposes only, so that it now even has the power to censor them. Such an attitude of the Board, which is often politically motivated, can put the rights of the citizen at risk.

In Sree Raghavendra Films v. Government of Andhra Pradesh[20], In the exercise of the powers of u/Sec.8(1) of the A.P. Cinemas Control Act,1955 , the exhibition of the film ‘Bombay’ in its telugu version was suspended, despite having been approved by the Censor Board for unrestricted display. The suspension was imposed citing a cause that could harm the sentiments of certain communities. The Court found that the authorities that passed the contested order did not even watch the film. The Court therefore quashed the order as arbitrary and not based on proper material.

In another case of F.A. Picture International v. Central Board of Film Certification[21], while overruling the FCAT’s order to censor the movie, ‘Chandbujh Gaya’, the Bombay High Court opined: “Censorship in a free society can be tolerated within the narrowest possible confines strictly within the limits which are contemplated in a constitutional order.” It strongly criticized the role of the concerned authorities and observed that: “The view of the censor does no credit to the maturity of a democratic society by making an assumption that people would be led to disharmony by a free and open display of a cinematographic theme. The certifying authority and the Tribunal were palpably in error in rejecting the film on the ground that it had characters which bear a resemblance to real life personalities. The constitutional protection under Article 19(1) (a) that a film maker enjoys is not conditioned on the premise that he must depict something which is not true to life. The choice is entirely his”

In the case of Union of India v. KM Shankarappa[22], the Supreme Court disapproved of the Government retaining powers by enacting Section 6(1) of the 1952 Act and declared it ultravires the Constitution. It held: “The Government has chosen to establish a quasi-judicial body which has been given the powers, inter alia, to decide the effect of the film on the public. Once a quasi-judicial body like the Appellate Tribunal [FCAT], consisting of a retired Judge of a High Court or a person qualified to be a Judge of a High Court and other experts in the field, gives its decision that decision would be final and binding so far as the executive and the Government is concerned. The executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution. The Executive cannot sit in an appeal or review or revise a judicial order”.

Copy Rights Infringement Issues in Indian Cinema:-

Copyright ordinarily and primarily means that the creator alone possesses the right to make the copies of his/her work or alternatively, may prevent all others in indulging or from making such copies. The basic motive for such a protection is the premise that “innovations require incentives”. The law of Copyright recognizes and understands this necessity and stretches it in the form of legal sanction. Furthermore, any commercial exploitation of copyright work results in income to its creators and hence resulting in pecuniary rewards to his creativity. But where there’s a way to the creativity, there’s always a measure to circumvent the creative mind and input. One of the earliest and most popular being piracy.

The problem of piracy and its persistence has attracted the continuous attention of government policy makers and law enforcement officials because of the fact that piracy eats the economy like a pestering parasite. The wrath of piracy was not only prevalent before the introduction of Internet. It rather soared to its height after the coming of the digital environment, bringing up the incidence of digital piracy. This virus has sickened the music, publishing, media, software and entertainment industry equally. As far as the film industry is concerned, piracy has had a knee-breaking distress here too.[23]

India is estimated as the largest film industry, yet seriously wedged by the stance    of piracy. A report, ‘The Effects of Counterfeiting and Piracy on India’s Entertainment Industry,’ released by US-India Business Council (USIBC) along with Ernst & Young showed that around 800,000 direct jobs and near about Rs. 16,000 crores are sacked due to piracy.[24] As per a 2013 article in WIPO Magazine, the Indian film industry loses around INR 18,000 crores (US$3.34 billion) and about 60,000 jobs every year due to piracy,[25] when the size of the Indian film industry is estimated at Rs. 19,000 crores with over 2,000 movies released annually.

Legal Measures to Combat Copy Right Infringements in Film Industry:-

Articles 11 & 12 of WIPO Copyright Treaty (WCT) and Articles 18 & 19 of WIPO Performers and Phonograms Treaty (WPPT) mandate the contracting parties to take ‘adequate’ and ‘effective’ legal remedies against unauthorized meddling of information and rights management of electronic dealings and information, they also impose a duty to enforce law to take strict measures against the promoters of such violation of right.[26] Although India did not become the part of WIPO Internet treaties, the introduction of new provisions by 2012 Amendment in the IT Act present a different picture. The provisions similar to the provisions contained in WIPO Internet treaties have been adopted in the form of Sec. 65A and 65B.[27]

Judicial Pronouncements on Copy Right infringements in Film Industry:-

The judiciary had to rely on the basic provisions of copyright law, without the touché of instruments like DRM and electronics right management. However, Indian judiciary has proved its mettle in dealing with the cases of infringement successfully and efficiently to some extent, but a bigger picture of the scene still states a redundant attitude of the court.[28]

In RG Anand v. Delux Films[29], the Court has enunciated few guidelines relating the infringement of the copyrights. They are:-

1.     One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.

2.     Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.

3.     Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant’s work is nothing but a literal limitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.

In the case of Twentieth Century for Film Corp. v. Sohail Maklai Entertainment[30], the Bombay High Court held that Sohail Maklai film “Knock Out” was indeed liable for infringement of the copyrights of the 20^th century Fox’s movie “Phone Booth”. The decision of the Bombay High Court is historic in one way that for the first time in India the court had actually held Bollywood liable for Copy Rights infringement.

In the case of Barbara Taylor Bradford v. Sahara Media Entertainment Ltd.[31], the court relied upon the judgment of the Supreme Court delivered in the case of R.G. Anand v. Delux Films and decided that “there was no infringement of copyright as a theme is not protected under the Indian Copyright laws and reiterated the fact that ideas are given no protection and it is only the expression of an idea which can seek protection under the Indian copyright laws. Ideas can however be protected only when a person with an idea reveals the idea to another person in confidence or through the presence of non-disclosure agreements (NDA) between the parties.”

It is an open secret that the Bollywood had been accused of plagiarism to the effect of stealing scripts of movies, music and even ideas from domestic as well as from International works. It has been the case for a long time now, from Amitabh Bachchan and Hema Malini starrer 1982 movie ‘Satte Pe Satta’ which immensely resembled the 1954 Hollywood movie ‘Seven Brides for Seven Brothers’ to the very recent Ajay Devgan and Kajal Aggarwal starrer 2011 movie ‘Singham’ which had action sequences copied from the 2010 Hollywood movie ‘Red’.[32]

This imitation in Bollywood happens not just from the movies of the foreign film industries like Hollywood but also from different film industries within India like Kollywood or Tollywood. Recent example of this is the movie ‘Ladies Vs Ricky Bahl’ which was accused to be a copy of the Kollywood film ‘Naan Avan Illai’. The Indian filmmakers sometimes go to the extent of lifting an entire scene from these movies knowing and realizing well that to escape liability and accusations of plagiarism, they can take advantage of the various loopholes in the provisions of the Copyright Act, 1957 as well as find themselves to be protected by the lumbering legal system of India[33]

Conclusion and Other Suggestions:-

Some of the Suggestions relating to the Censorship are:-

1.     There is acute politicization when it comes to censoring of movies. The freedom of artistic expression, which the Constitution guaranteed had to be restricted only in exceptional situations. With digitalization taking over, virtual mediums have come up and access to television series, plays, stand-ups and other such OTT platforms are available at free/minimal   cost online. Interestingly, the standard of regulation for such media is lower than for movies. Furthermore, they are subject to post-censorship as against pre-censorship, which movies have to go through. Recent surveys revealed that in the today times, people prefer watching online TV series and movies over physically visiting theatres. Therefore, it is high time that the regulations of the two are reconciled. Moreover, The fact that regulations for the two medium are different and ironically, the regulations are more strenuous for traditional media, this amounts to discrimination barred by Article 14 of the Constitution. Article 14 embodies the right to equality and requires the Government to treat equals as equals. A challenge under Article 14 can be made when a classification lacks reasonable classification and intelligible differentia. In the present case, there is no reasonable basis for strictly regulating movies as against the virtual media, despite the latter being more easily accessible.

2.     As per the current law, there are barely any qualifications for being a member of the Advisory Panel. It is the complete discretion of the Central Government which can nominate any person who it believes is qualified to judge the effect of the films on the public. The Act and the Rules are completely silent on what are the parameters on which one’s ability to judge the effect of films on the public can be assessed, Through the Amendments the qualifications shall be brought forth[34].

3.     A long-standing demand of the filmmakers has been to establish the Film Council of India (FCI). The demand has been to stick to the original object of the CBFC as stated in its Preamble i.e. certification of movies. With time, the CBFC has acquired sweeping powers of editing, mutilating and even banning a film. The proposed FCI shall take away such powers from the CBFC and vest it in itself. Therefore, in case the CBFC finds any content objectionable, it can refer the same to the FCI. The decision over such content shall then be undertaken by the Council consisting of retired Judges, lawyers, filmmakers, writers and artists.

By looking into the above discussed censorships, I believe that the censorship Laws in India are too stringent which needs to be relaxed by giving way to the film makers to express their views freely in this democratic society. However, the rules has to be formulated to regulate the content manifested by the OTT Platforms also. The Balance needs to be created between the Freedom of Expression and the Decency and Public Interest.

When it comes to the copyright infringements, Bollywood has made it a habit to imitate the works of Hollywood primarily taking it to be the formula for a sure-shot successful film. But, Bollywood has to realize that when they copy and imitate Hollywood scripts, styles, and themes, they are effectively conceding creative inferiority of their own. There is a greater need now for Bollywood to rethink its long allegiance towards imitating Hollywood.[35]

The Copy Right Laws has be made more stringent to deal with the infringements happening in the Bollywood and also a Regulatory body consisting of a group of veteran film makers and Judges had to be created so as to curb such infringements.