Introduction
The Cinematograph Act of 1952 was enacted to make provisions for the certification of cinematograph films for exhibition and for regulating the exhibitions by means of cinematographs. The act established the Central Board for Film Certification (CBFC)[1], which is tasked with the duty of certifying films for public exhibition. Censoring of films is based on the criteria mentioned in Act itself. The Ministry of Information and Broadcasting has introduced the Cinematograph (Amendment) Bill, 2021, which is a revision of the Cinematograph (Amendment) Bill 2019, and proposes to make the process of sanctioning of films for exhibition more effective, in tune with the changed times and also curb the menace of piracy[2]. The bill proposes some major changes to the Act of 1952 which are discussed below and is open for public comments.
What’s in the Box?
The author shall first discuss what changes the Bill proposes to make, and then further their merits shall be discussed. Following are the proposed changes:
(i) Creation of further Sub categories in the existing U/A category.
Under the present Act, the films are certified in three categories, i.e., Universal (U) , Universal Adult (U/A) and Adult (A)[3]. The Bill proposes to further divide the UA category into age-based categories, i.e., U/A 7+, U/A 13+ and U/A 16+.
(ii) Removal of restriction on validity of the certificate.
Sub section 3 of section 5A of the Act of 1952 provided that a certificate issued by the board will be valid only for 10 years . This restriction was removed via executive orders[4] and an amendment is required in the Act to make the certificate valid in perpetuity.
(iii) Revisional powers to the Central Government
The most controversial amendment is the one proposed under section 6, wherein a proviso to sub section (1) of section 6 is to be added which gives revisionary powers to the Central government on account of violation of section 5B(1) of the Act. Thus if the government receives any reference with respect to any film which has already been certified for public exhibition by the CBFC, citing the violation of section 5B(1) of the Act, it may direct the Chairman of CBFC to re-examine the film.
(iv) Penalising Film Piracy
To curb the menace of film piracy especially the release of pirated version of movies online, which majorly originate from illegal duplication in the cinema halls, a new section 6AA is proposed to be added which prohibits any person to use any audio visual recording device in a place to knowingly make or transmit or attempt to make or transmit or abet the making or transmission of a copy of a film or a part of it without the written authorisation of the author[5].
A penalising provision proposed under section 7(1A) supplements this section which will impose a fine of not less than three lakh rupees but which may extend to 5% of the audited gross production cost or imprisonment for a term not less than three months but which may extend to three years, or both[6].
Why is the Bill being opposed?
The bill has been opposed by many stakeholders, calling it arbitrary, vague and an unnecessary sensor on the artistic freedom of speech[7]. The provisions relating to the revisionary powers of the central government and the penalising of piracy merit further discussion to understand the issue.
(i) Revisionary powers of the central government
Following the abolition of the Film Certification Appellate Tribunal (FCAT)[8], the proposal to give revisionary powers to the central government has faced severe backlash from the film industry, with some calling it a super censor and coming out openly against this provision[9].
Under the existing Act, section 6 empowered the central government to call for the proceedings respecting the certification of a film which is pending or is certified by the board and pass any orders thereon. This implied that the central government could even reverse the orders of the CBFC! The Supreme Court in the year 2000, had upheld a decision of the Karnataka High court declaring section 6(1) as unconstitutional and struck down this provision[10]. The apex court reasoned that the government has constituted a quasi judicial body which reviews the grant of certification for films; and allowing the executive to review the orders of a competent quasi judicial body would amount to interference in the exercise of judicial powers and subjecting the decision of the judiciary to that of the executive, which is opposed to the fundamental tenets of the constitution and the rule of law[11].
This proposed amendment is an attempt to bring back the draconian section 6(1) with certain modifications. The proposed powers of the central government are limited to ordering a review only, as against passing any order, and also the review can only be ordered on the grounds of violation of section 5B(1) which provides that if the film or any part of it is against the sovereignty and integrity of India, security of state, friendly relations with foreign states, public order, decency or morality, or involves the defamation or contempt of court or is likely to incite the commission of any offence, then the film shall not be certified for public exhibition. This provision is justified under Article 19(2) of the Constitution of India which imposes reasonable restrictions on the Freedom of speech and expression. Such revisionary powers of the Central government leave ample room for manipulation and stifling free speech, and are totally unwarranted. The CBFC is an autonomous body, and it works within a set of guidelines prescribed by the Central Government, so this revisional power to the government is just adding another layer of censorship. It is the author’s suggestion that either the FCAT should be reinstated or an independent neutral body be created to deal with grievances like violation of section 5B and the like. The introduction of a neutral body will ensure an unbiased grievance redressal which is highly important to foster artistic freedom and creativity.
(ii) Penalising Piracy
It is pertinent to reproduce the proposed section 6AA here, which reads as follows:
“Notwithstanding any law for the time being in force, no person shall, without the written authorization of the author, be permitted to use any audiovisual recording device in a place to knowingly make or transmit or attempt to make or transmit or abet the making or transmission of a copy of a film or a part thereof.
Explanation.- For the purposes of this sub-section, the expression “author” shall have the same meaning as assigned to it in clause (d) of section 2 of the Copyright Act, 1957.”
The introduction of punishments to tackle piracy is a welcome move, however this section creates more confusions and ambiguities than solutions. Firstly, it uses the term ‘without authorisation of the author’ , which should be replaced by the term ‘without authorisation of the owner of copyright’, to take into account situations where the author may assign his copyright to other persons. Secondly, the section uses the term ‘any place’ instead of defining an exhibition facility and thus vaguely broadening its scope. Thirdly, it prohibits ‘making a copy of the film or a part thereof’ without defining what it actually means and intends to cover. This implies that a recording of any length and for any purpose whatsoever can be punished under this section. The only exemptions made are those falling under section 52 of the Copyright Act[12], but no specific exemptions are made for non- commercial use, fair uses, de minimus use and derivative works.
This provision is similar to section 63 of the copyright act[13], albeit it levies a higher fine than the latter. Such inconsistencies should be avoided and both the laws must be harmonised. It is the opinion of the author that enacting multiple penal provisions is not the solution to combat piracy, rather the legislature must come up with more creative and effective means of tackling piracy in a systematic manner. Section 6AA must be very clearly drafted to leave no room for misuse and also specify the extent of punishments that can be imposed under specific circumstances.
Conclusion
The Cinematograph Amendment Bill 2021 suffers from various shortcomings and it should be drafted in more clear terms to systematically tackle the problems it intends to solve. Secondly, the provision giving the central government revisionary powers over decisions of the CBFC must be scrapped in the interest of promoting free speech and artistic creativity. The CBFC already works within a set of guidelines laid down by the law and it should be a judicial authority or a neutral body that should be given the power to review, and not the executive.
[1] The Cinematograph Act 1952, Section 3.
[2] The Cinematograph Amendment Bill 2021, Available at – https://mib.gov.in/sites/default/files/Public%20comments%20sought%20on%20Cinematograph%20%28Amendment%29%20Bill%202021.pdf
[3] Supra note 1, section 5A.
[4] Supra note 2.
[5] supra note 2.
[6] ibid.
[7] Raghav Tankha, Why proposed amendments to the cinematograph Act have left filmmakers unhappy, The Wire, July 6, 2021, https://thewire.in/government/why-proposed-amendments-to-the-cinematograph-act-have-left-filmmakers-unhappy.
[8] Pradeep Kumar, Abolition of the Film Certificate Appellate Tribunal leave film industry puzzled, anxious, The Hindu, April 10, 2021. https://www.thehindu.com/entertainment/movies/abolition-of-film-certification-appellate-tribunal-leaves-film-industry-puzzled-anxious/article34288969.ece
[9] Supra note 7.
[10] Union Of India vs K. M. Shankarappa on 28 November, 2000 civil appeal 3106 of 1991
[11] ibid.
[12] Proviso tp the proposed subsection 1A in section 7 of the Amendment Bill, 2021.
[13] The Copyright Act 1957, Section 63.
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