Cinema at the pleasure of Central govt
While films are such popular and highly influential media, nobody has really time to seriously and honestly reflect on the state of law and policy that govern films in the country. For the last several decades, successive governments at New Delhi never had the time nor will to modernise the hopelessly outdated Cinematograph Act, 1952. That is why even after 100 years of Indian Cinema, we are putting up with a film censorship law that reeks of a century-old colonial legacy and overwhelming state dominance. Jolted by the Viswaroopam controversy in February last year, the Central Government constituted a high level committee under the chairmanship of Justice (Retd.) Sri Mukul Mudgal to look in to all aspects of Cinematograph Law. The Committee submitted its report few months back along with a draft Cinematograph Bill, 2013.
Statutory Board at the mercy of Central Government:
With respect to appointment of chairpersons to the Central Board of Film Certification (CBFC) as well as the Film Certification Appellate Tribunal (FCAT), no obligatory consultation with leader of opposition or Speaker of Lok Sabha or Chief Justice of India etc. was envisaged, as is the case presently with some national level statutory bodies such as National Human Rights Commission and sectoral tribunals like Telecom Disputes Settlement and Appellate Tribunal (TDSAT). As regards to the ‘eligibility’ criteria for members of the Board and for advisory panels, though the committee specified some ‘fields’ such as art, cinema, drama, law etc. to draw the members from, it favoured continuation of the present system of ‘organised patronage’ wherein the Central Government has unfettered discretion in handpicking its favourites who are supposed to be “qualified to judge the effect of films on the public.” While the committee included some grounds for removal of chairperson and members, it retained the general rule, ‘every member of the Board shall hold the office during the pleasure of the Central Government.’ For the ‘advisory panels’ (whose members actually examine and certify films), it suggested that a committee drawn from the Board shall prepare a panel of nominees and Central Government will finally ‘select’ the members in 2:1 ratio. When the Board Chairman and members hold office ‘at the pleasure of the Central Government’, how the panels selected by a committee drawn from the very Board will be ‘qualified’ and ‘autonomous’ is an obvious question here.
While the Committee made a welcome proposal for expansion of jurisdiction of the Appellate Tribunal to hear appeals from ‘anyone’ (not only by the applicant of the certificate which is the case now) aggrieved by the decision of CBFC, it favoured for retention of the notorious ‘revisional powers’ of Central Government over the decisions of the statutory Board, a position viewed adversely by Supreme Court in K.A. Abbas vs. Union of India.
Khosla Committee Report (1969) – Much progressive:
Now, contrast the above scheme of things proposed by the Expert Committee with some of the progressive recommendations of the ‘Enquiry Committee on Film Censorship’ headed by Justice (Retd.) GD Khosla which submitted its report in 1969. This report won the accolades of Supreme Court but was completely ignored by the successive governments. It wished to do away with the hegemony of central government on film censorship. The Committee envisaged an “independent and autonomous Board of Film Censors” headed by a chairperson with status and ranking of a High Court Judge. Rigid censorship code, constant fear of interference by Central Government and the resultant ‘lack of responsibility’ of examining committee members were identified as the ‘most important defects destroying the efficiency of the Board’. Accordingly, it recommended for scrapping of ‘advisory panels’ appointed under governmental patronage and said that the ‘Board members’ themselves shall examine and certify the films assuming full responsibility. Further, the Committee proposed that the film certification guidelines shall be drawn up by the Board itself and not as a diktat of Central Government.
Power to ban ‘certified’ films given to Central Government:
In order to avoid State Governments from imposing ‘arbitrary’ bans on the films already cleared by CBFC, the new remedy suggested by the Committee is worse than the disease. It proposed that in cases of breach of public order or likelihood of such breach, the Central Government either suo motu or at the behest of the relevant State Government can pass an order for suspension of exhibition of the film and that order must be appealable to the Tribunal. It means that till now, the films are being stalled by State Governments and now their exhibition will be at the mercy of Central Government (read Minister/Secretary, I&B). Further, no time limit was prescribed for decision by Central Government after the state government provides necessary information regarding the ground ‘public order’ situation.
While the need and propriety in adding one more layer of central government in deciding about ‘public order’ and suspension of exhibition of a film are highly questionable, the most appropriate mechanism appears to be to make the concerned state government move the expert Tribunal directly and it shall decide the case on priority within a statutorily-mandated time frame. This ensures the sensitive decision regarding suspension of the exhibition of a certified film will not be subject to the whims and fancies of either the state or central government. Also, the direct appeal to Tribunal will be in line with the other key recommendation of the committee whereby the tribunal’s jurisdiction was sought to be expanded to hear appeals from ‘any one’ aggrieved by the decision of CBFC - the concerned state government in the subject case. Further, being a quasi-judicial decision, the order will assume a sort of finality with further appeal only to Supreme Court.
Audience’ perspective missing:
It was expected that the expert committee will bring in international experience and recommend some specific audience-friendly measures to be included in the statute itself. However, the committee didn’t dwell at all on the global best practices in the field of film regulation and the all-important role of CBFC in connecting with the audience by making optimum use of a vibrant online presence, social media and latest technology (audience-friendly apps etc.) so as to make the film rating process transparent and participatory. While there is hardly any change in the Cinema law since British times to the present day, the report didn’t discuss anything on the findings of earlier enquiry committees on film censorship. Many of the 'new' provisions in the draft Cinematograph Bill, 2013 are indeed ‘cut-paste’ versions from the existing Cinematograph (Certification) Rules, 1983. Though the Committee noted that the present certification guidelines ‘are incapable of objective application’, it didn’t make any concrete suggestions to make them specific and less subjective. The report didn’t discuss anything about the immediate need for separate ‘ratings’ for films meant for television telecast. The committee favoured continuation of the present farcical regime of ‘self-regulation’ of film publicity material (posters etc.) by the industry-sponsored screening committees.
The Committee nevertheless made commendable suggestions to expand the scope of definitions of several terms such as ‘cinematograph’, ‘film’, ‘advertising material’, ‘exhibition’ etc. in the light of modern technologies and ground realities. It recommended for new categories of certifications, viz., ‘12+’ & ‘15+’ in place of existing ‘U/A’ and advocated for ‘pre-screening’ of film lyrics by CBFC. It proposed to make ‘film piracy’, a cognizable and non-bailable offence but the failure to indicate CBFC rating (‘A’, ‘UA’ etc.) on publicity material thereby misleading audience about the ‘nature’ of the film was brought down as simple offense with mere monetary penalties.
Informed debate - need of the hour:
As Sri AG Noorani poignantly remarked in his article, ‘Censorship and the State’, “The entire system of film censorship in India is brazenly unconstitutional and a fraud on the Supreme Court. It is in utter disregard of the report of one of the most distinguished committees ever which toiled on film censorship 40 years ago. The structure erected by the outdated and much amended Cinematograph Act, 1952, is scandalous. It is designed to foster organised patronage. Politically, it establishes overwhelming state dominance to ensure the film industry's dependence on Ministers and civil servants.” It is appalling that the expert committee hardly aimed at changing this sorry state of affairs.
More alarming than the regressive scheme mooted by the expert committee is the silence and absence of any kind of analysis or debate on the report. It is high time for the film fraternity, civil society, media scholars, policy analysts and legal pundits take time to analyse the implications of expert committee recommendations which are going to shape the new cinematograph law for decades to come. At least now, the government should show its maturity in accepting some of the progressive recommendations of Khosla Committee and make the CBFC truly qualified and autonomous. Even after the centenary year of Indian Cinema, if we don’t care to engage in a serious and informed debate about modernizing the outdated film censorship law, it will be a historic blunder and an insult to the art of Cinema.
(Edara Gopi Chand is vice-president, ‘MediaWatch-India’, a civil society initiative to promote decency and accountability in the media - www.mediawatchindia.org; e-mail: mediawatchindia123@gmail.com)
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