Film tribunal’s rulings: good, bad and arbitrary

The Gujarati film 'Sex Education', meant for children, got an A certificate and was ordered to run a disclaimer by FCAT.

 

The Film Certification Appellate Tribunal (FCAT) tasked with hearing appeals against the orders of the Central Board for Film Certification (CBFC) continues to set aside the absurd orders passed by the CBFC but often upholds specific cuts. However as explained earlier, FCAT, which is headed by a retired judge of the Delhi High Court and has members from the BJP on it, continues to be arbitrary in its reasoning.

 

The Good

In the last year, two political documentaries/propaganda films on Prime Minister Narendra Modi and Delhi Chief Minister Arvind Kejriwal ran into trouble with the CBFC.

The movie on Modi,titled “Modi ka Gaon” was certified as UA by the CBFC but strangely, the Board directed the producer to seek a ‘No Objection Certificate’ from the Prime Minister’s Office because the movie referred to the PM and a character in the movie closely resembled the PM. It also directed the producer to seek a NOC from the Election Commission because of upcoming elections and the fact that the movie could be treated as promotional material for political campaigns.

The movie on Kejriwal, titled ‘Yeh Jantantra Hai: An Insignificant Man’ was also cleared by the CBFC with a UA certificate but once again the producers were directed to seek a NOC from Kejriwal, former Delhi chief minister Sheila Dixit and other politicians for using footage of them in the movie.

In neither case did the CBFC cite a provision of law or precedent that required the issuance of such a NOC. To require producers to seek a NOC is basically vesting de-facto censorship power in the hands of politicians because if they refuse to grant a NOC, the movie maker cannot use the footage per the CBFC’s directions.

On appeal, FCAT in both cases overruled the CBFC’s demand for a NOC from the politicians whose footage was used in the movie describing the pre-condition as “wholly unsustainable”, “not permissible at law” and “non-est”. Hopefully, the CBFC will not go down this road again.

 

The Bad

In its recent orders, the FCAT has in at least three instances directed producers to introduce disclaimers as a pre-condition to the release.

In a Gujarati film, titled ‘Sex Education’, which is on the importance of sex education for children, the movie was allowed to be released by FCAT only with an Ádult certificate (kind of defeating the aim of the movie) after the producer appears to have reluctantly agreed to screening the movie only to adults. Not happy with just the ‘A’ certification, FCAT also directed the producer to introduce a ‘disclaimer’ explaining the rationale of the movie and that it wasn’t meant to ‘degrade or denigrate women’.

 

Similarly, in the movie ‘Modi ka Gaon’, the producer had a disclaimer inserted to claim that any resemblance of the characters to anyone in real life was purely co-incidental. As the FCAT notes in its order, the disclaimer was misleading because it was quite clear that the movie was about Modi.

It then orders the producer to insert a disclaimer stating, amongst other things, that the movie was a work of fiction and that it was the producer’s perception of initiatives and developments launched by Modi. The last line of the disclaimer mandated by FCAT required the producer to state that the character ‘Pappu Bihari’ is not intended to reflect on any living or dead politician’. The phrase ‘pappu’ is often used by the BJP in a derogatory context to portray Rahul Gandhi as an amateur when compared to Modi. The FCAT, which has two BJP members, was not comfortable with the use of the word in the movie.

The third movie to be subject to the requirement of the disclaimer was ‘The Game Of Ayodhya’. This documentary on the politics of the Ramjanmabhoomi movement and the destruction of the Babri Masjid was denied certification by the CBFC on the grounds that it was provocative and would pose a threat to state security, communal harmony etc. To its credit, FCAT overturned the de-facto ban and ordered the documentary certified to be publicly exhibited on the grounds that “a mere apprehension of disturbance of public order without any supporting basis, the right to freedom of expression guaranteed under the Constitution cannot be curtailed”.

The certification, however, was made contingent on the display of a ‘disclaimer’ stating that the movie was not meant to hurt religious sentiments, that the movie was meant to promote communal harmony, that the characters in the movie are fictitious etc.

Forced disclaimers are akin to forced speech where a person is being forced to say something despite not wanting to do so. The right to free speech under Article 19(1)(a) of the Constitution includes the right to not say anything. The state or its institutions cannot force people to say things that they don’t want to.

 

In fact, there is at least one precedent where Justice Rajiv Shakdher of the Delhi High Court over-ruled FCAT when it ordered Pankaj Bhutalia to insert a disclaimer in his documentary on Kashmir stating that the movie was not meant to hurt sentiments and represented the views of the individual. Justice Shakdher termed the disclaimer as completely ‘superfluous’ and ‘completely untenable’ and overruled FCAT on the issue, allowing Bhutalia to screen his film without the disclaimer.

 

The Arbitrary

The truly arbitrary aspect of FCAT’s orders continues to be the demand for cuts from movies without providing any legal reasoning. For example, in ‘Modi ka Gaon’, the producer was ordered to mute references to ‘Uri’ and ‘Loc Ke Par’, both of which are references to the surgical strike by the Indian Army in Pakistan that became the calling card of the Modi sarkar last year. The order doesn’t give any reasoning as to why such muting was necessary.

In the case of another Hinglish movie titled ‘Kaalakandi’ - a dark comedy about the urban upper class in Mumbai and the seedy underworld - the CBFC objected to a range of cuss words used in the movie. On appeal, FCAT overturned most of the cuts proposed by CBFC.

For example, the CBFC had ordered the producer to delete the words ‘jack off’, ‘dick’, ‘bhenchod’, ‘gadhe ka lund’ etc. On appeal the first three cuts were overruled by FCAT on the grounds that the words were in keeping with the characters in the movie but strangely ordered the producer to change ‘gadhe ka lund’ to ‘gadhe ki ling’! Both phrases translate into the external male reproductive organ of the donkey but the latter is a more sanskritised version of the hindi phrase. FCAT gives no reason for this edit. Why is it okay to use the word ‘dick’ in English but not ‘lund’ in Hindi when they both mean the same thing?

Similarly, FCAT ordered the producer to delete references to the cuss words ‘madarchod’, ‘gand mari ke’, ‘maa chod di’ without really offering any reasons. Similarly, at another stage, FCAT directs the producer to curtail by 50% a scene where a woman is seen straddling a man with a direction that it does not depict the act of coitus being performed! Again, no reasons are assigned for this decision. Would the decision change if the on screen couple were simulating the sex scene in a different position? Why should a sex scene be cut by 50% and which half of the scene should be cut?

FCAT needs to provide better reasoning while ordering such cuts because, as a judicial body, it draws its legitimacy from its legal reasoning.