Cinematograph Amendment Bill, 2021: Super Censorship?

Published : Jul 10, 2021 11:30 am | By: M D Sridharan

The cinematograph (amendment) bill, 2021, that proposes to give the Central government powers to re-examine films already cleared by the CBFC has been criticised by the film fraternity as an attempt to act as a “super censor”.

The Information and Broadcasting Ministry has proposed a new Cinematograph (Amendment) Bill, 2021, that will allow the Union government to order a re-examination of an already certified film if there are complaints against it.  In essence the government will have the power to ban a film any time it feels such an action is “warranted” in the interest of national security, public order, decency or morality among other things. The proposed new amendment has already created huge hue and cry from the film fraternity, even before it is passed in the Parliament.

A number of high-profile film personalities have already criticised the government’s move and termed it as regressive. Several prominent actors and filmmakers across the country wrote an open letter to the Ministry of Information & Broadcasting, six film bodies — including the Producers’ Guild, and Indian Film & Television Directors’ Association (IFTDA) — issued a joint representation to the government and expressed their reservation against the proposed amendments.  

Critics have described the amendment to the Cinematograph Act, 1952, as an attempt by the Modi government to wrest absolute control over censorship from the  CBFC (Central Board of Film Certification), the sole authority on film censorship, and act as a super censor. They claimed that the amendment will stripe the powers of   CBFC and the government will emerge as the final arbiter of a film’s destiny.

Critics fear that the whole process of film certification could become politicised and the proposed amendment will put film-makers at the mercy of ruling party.  There are fears that a film’s fate will be determined by the powerful political dispensation of the day rather than its true merit and accordingly the government will dictate terms to suit its ideological sensitivities to finally clear a film. They fear that they will have to make films with a threat constantly looming over their heads that the government may ban the films.

Further, the amendment would also pave the way for the fringe groups to protest and harass film-makers.  There have been many instances in the past where the community based fringe groups have protested against screening of several films even after the CBFC had cleared. Film makers voice their concern that such fringe groups will be emboldened by the new amendment and films could be held up for re-certification based on their objections,

While the government has invited comments from the public on the amendment, the film industry has accused the government for not initiating any consultations with them. The government power to ‘vet’ has already been extended to OTT platforms. The Modi government recently notified IT Rules for OTT and digital news platforms. The draft bill was released on June 19, and the last date for submitting comments was July 2. But, considering the government’s majority in Parliament, there’s little doubt that the bill will go through.

Key provisions of the bill

The new amendment bill is a revised version of the Cinematograph Act of 1952. In 2019, the Cinematograph (Amendment) Bill was introduced in Rajya Sabha, where it was proposed to insert a new Section 6AA, and a new sub-section (1A) in Section 7 of the Act, both aimed at tackling piracy. Subsequently, the ministry examined a report presented by the Standing Committee on Information Technology in Lok Sabha in 2020. The latest draft bill stems from that. Revision of certification, Age-based certification, Provision against piracy and Eternal certificate are the key provisions of the amendment.

 In April this year, the government decided to do away with the Film Certification Appellate Tribunal (FCAT), a statutory body set up to hear appeals of film-makers against decisions of the CBFC.   FACT was the last point of appeal for filmmakers against the certificate granted to their film.

Revision of certification:

Though, in the current Cinematograph Act of 1952, in Section 6, already provides the government with powers to call for records of proceedings with respect to a film’s certification. It cannot be implemented. Way back in 1990 K.M. Shankarappa, challenged the revisionary powers of the government in respect of films that have already been certified by the CBFC. The Karnataka High Court passed the verdict that the Union government cannot exercise revisionary powers in respect of films that have already been certified by the CBFC. In 2000 the Apex court upheld the ruling of the Karnataka High Court and the provision remains inoperative.

The amendment will reinstate the revisionary powers of the government.  As per draft cinematograph bill, the Centre will have revisionary powers on account of violation of Section 5B(1) (principles for guidance in certifying films).  Accordingly, if the situation necessitates, the Central Government will reverse the decision of the CBFC and direct the Chairman of the CBFC to re-examine a film.

Age-based certification:

The draft cinematograph bill proposes to introduce age-based categorization and classification to divide the film categories into five age-based groups from the existing three categories  of certification namely U, U/A and A -  ‘U’ for unrestricted public exhibition, ‘U/A’ that requires parental guidance for children under 12 and ‘A’ for adult films. Now, the films will are certified into five categories such as U, U/A 7+, U/A 13+, U/A 16+ and Adult. The move on age-appropriate classification of content seems to be an attempt to control and monitor online video streaming platforms. 

Provision against piracy:

The draft also proposes to add Section 6AA that will prohibit unauthorized recording. Penal provisions, including imprisonment and fine, have been proposed. At present, there are no enabling provisions to check film piracy in the Cinematograph Act, 1952.  Section 6AA, which states that without the written authorisation of the author, no person shall be permitted to use any audio-visual recording device in a place to knowingly make or transmit or abet the making or transmission of a copy of a film or a part thereof. Further, it introduces provisions penalising those involved in film piracy, stating the offender would be punishable with imprisonment for a term which shall “not be less than three months but which may extend to three years and with a fine which shall not be less than Rs 3 lakh, but which may extend to 5 per cent of the audited gross production cost, or with both”.

Eternal certificate:

The draft proposes to certify films for perpetuity Eternal certificate as against the current validity of 10 years. As of now a certificate issued by the CBFC is valid only for 10 years.

Rationale behind the changes

A close look at the proposed amendment is not all that draconian as it is being made out by the film fraternity. The government is of the view that the change in censorship is required now as present system is stuck with age-old rules and regulations.

 Regarding the recertification, while the draft Cinematograph (Amendment) Bill 2021 acknowledges the existing Supreme Court order that the Government cannot exercise revisionary powers on films already certified by the CBFC, the government pointed out that “sometimes complaints are received against a film that allude to violation of Section 5B(1) of the Cinematograph Act, 1952 after a film is certified”, on which the Government now has no powers of intervention.

The newly added clause reads - “Since the provisions of Section 5B(1) are derived from Article 19(2) of the Constitution (reasonable restrictions on freedom of speech) and are non-negotiable, it is also proposed in the draft Bill to add a proviso to sub-section(1) of section 6 to the effect that on receipt of any references by the Central government in respect of a film certified for public exhibition, on account of violation of Section 5B(1) of the Act, the Central government may, if it considers it necessary so to do, direct the CBFC  to re-examine the film”.

Further, the government has cited the “reasonable restrictions” placed by the constitution in Article 19  of the constitution to justify exercising its powers to act as a super-censor for films about which it receives complaints.  Moreover, the CBFC will continue to be the authority on film censorship matters and the government will only direct the CBFC to review the certification only if it is warranted.

The government has made it very clear that it may intervene and demand recertification of a film only when it feels that the interests of the sovereignty and integrity of India, the security of the state, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence, hatred against particular community and religion is exhibited in a film.  

But the film makers feel that the amendment will curb the freedom of expression as all over the world films have been used to portray the real situation and by imposing restrictions upon the freedom of speech and expression, the government is attempting to suppress dissenting voices.

The film makers are afraid that the proposed changes would give the government overriding power over cinema. They claim that the Centre’s  new role as “the super censor”  not only  dilute the creative freedom but also  only threaten freedom of expression in India.

When the government has made its intentions clear, why the film makers are up in the arms? Is it not the duty of the government to protect its sovereignty and integrity?

Over the past seven decades since the launching of CBFC, hundreds of films, that include both films made in Indian languages and also Hollywood films, have been banned by CBFC for various reasons such as:  political overtones, hurting religious sentiments, instigating communal violence, depicting the country in bad light and on the grounds of obscenity.

All these decades the prominent film makers never protested against such bans and also not questioned the government on the basis of freedom of expressions. But, now they are making lot of hue and cry over the proposed amendment and criticise Modi government of stifling creativity.

While many welcome the idea of the age based certification by bifurcating the U and U/A ratings, there exists some confusion in the certification process as it will be a challenge to distinguish content meant for 13 and 16 or above. Also, another great relief for the film makers is the Eternal Certification that saves the film makers from the trouble of renewing the certificate every ten years.

Another key area focused in the amendment is piracy.  In today’s digital world, indeed piracy is the biggest threat for creativity. Provisions against piracy are much needed as the film industry is estimated to lose thousands of crores and it affects thousands of jobs every year because of piracy.

The amendment really protects the creative aspects of the film makers against people who indulge in plagiarism and shamelessly claim credit for someone’s creativity without proper authorization, as stringent punishment including imprisonment and fine are being proposed. Further, the new amendment will act as a deterrent to people involved in pirated videos as every year the film industry loses crores of Rupees due to pirated videos of new films.




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