Legally India: New Delhi: Saturday,
April 08, 2017.
The Central
Board of Film Certification (CBFC) functions as the primary body certifying
films for public exhibition in India. It is guided by the Cinematograph Act,
1952, and various rules and guidelines in determining the nature of
certification to be granted to a film. However, over the past few months,
reports about the Central CBFC’s alleged overreach moving from certification of
films to moral policing, for instance, by denying certification to films which
address LGBTQ issues have made the news. This post outlines the legal framework
within which the CBFC operates and discuss the prospects for change within this
framework.
The CBFC was
constituted under the Cinematograph Act, 1952 (Act), which aims to provide for
the certification of cinematograph films for exhibition. Specifically, the CBFC
was set up for the purpose of ‘sanctioning films for public exhibition’. The
law however, also allows the CBFC to require modifications to be made to a film
before providing such sanction / certification.
Over time,
the CBFC has increasingly used this power to direct cuts in films for various
reasons, leading to it being commonly referred to as the ‘censor board’. In
recent months, the CBFC has stirred up controversy in relation to certification
(or the lack thereof), of films with subject matter ranging from feminism /
women’s empowerment and LGBTQ issues, to the Indian government’s demonetisation
drive. The increasing possibility that a film will not even be granted
certification for public exhibition, has led to fears that self-censorship will
become a norm.
This fear
seems to have permeated into the online video streaming industry already.
Today, it isn’t clear whether streaming service providers are required to abide
by the certification norms under the Act. While streaming platforms differ in
their approach, and some providers choose to stream unedited i.e. ‘un-censored’
content, others are choosing to make only certified versions of films available
online. There have also been controversial claims of service providers choosing
to edit / censor content beyond the requirements of the CBFC.
The legal
framework within which the CBFC operates is outlined below.
As described
above, the CBFC is the sanctioning body which certifies films for public
exhibition. The Act also allows for the setting up of regional centers or
‘advisory panels’ to assist the CBFC in its functions.
The Act
provides that any person who wishes to exhibit a film should make an
application to the CBFC for certification. The CBFC may (after examining the
film, or having it examined):
· Sanction the film for unrestricted public exhibition,
subject to requiring a caution to be provided stating that parents / guardians
may consider whether a film is suitable for viewing by a child if required
(i.e. grant a U or UA certificate)
· Sanction the film for public exhibition restricted to
adult viewers (i.e. grant an A certificate)
· Sanction the film for public exhibition restricted to
members of a certain profession or class of persons based on the nature of the
film (i.e. grant an S certificate)
· Direct that certain modifications are made to the film
before sanctioning the film for exhibition as described above, or
· Refuse to sanction the film for public exhibition.
The Act, as
well as the Cinematograph (Certification) Rules, 1983, also provide detailed
procedures for the appointment of members of the CBFC and the advisory panels,
and appellate bodies, applications for certification, and appeals to the
decision of the CBFC. The Act also provides for revisionary powers of the
Central government in relation to the decisions of the CBFC.
In addition
to the above, the Act provides principles on the basis of which the CBFC may
refuse to certify a film namely, “if a film or any part of it is against the
interests of the sovereignty and integrity of India, security of the state,
friendly relations with foreign states, public order, decency or morality, or
involves defamation or contempt of court or is likely to incite the commission
of an offence”.
These
principles are further supplemented by the certification guidelines issued by
the Central Government in 1991, in accordance with the powers granted to it
under the Act.
These
guidelines provide five objectives for film certification under the Act: (a)
the medium of film remains responsible and sensitive to the values and
standards of society; (b) artistic expression and creative freedom are not
unduly curbed; (c) certification is responsive to social changes; (d) the
medium of film provides clean and healthy entertainment; and (e) the film is of
aesthetic value and cinematically of a good standard.
In order to
meet these objectives, the guidelines require the CBFC to ensure that films do
not contain (a) scenes that glorify / justify activities such as violence,
drinking, smoking or drug addiction, (b) scenes that denigrate women, (c)
scenes that involve sexual violence or depict sexual perversions, or (d) scenes
that show violence against children, among many others.
The language
used in many of these guidelines, while perhaps well intended, is vague, and
allows for wide discretion in certification subject entirely to the
sensibilities of the individual members of the CBFC.
In 2016, the
Ministry of Information & Broadcasting set up a committee to evolve broad,
but clear guidelines/ procedures to guide the CBFC in the certification of
films. The committee was headed by noted film maker Mr. Shyam Benegal. The
committee, in its report, has expressed the view that it is not for the CBFC to
act as a ‘moral compass’, and decide on what constitutes glorification or
promotion of certain issues.
The
committee’s report suggests that the only function of the CBFC should be to
determine which category of viewers a film can be exhibited to. The committee’s
report has suggested new guidelines, with the following objectives: (i)
children and adults are protected from potentially harmful or otherwise
unsuitable content; (ii) audiences (and parents / those responsible for
children) are empowered to make informed viewing decisions; (iii) artistic
expression and creative freedom are not unduly curbed in the classification of
films; (iv) the process of certification is responsive to social changes.
The
committee’s recommendations are yet to be implemented, however, news reports
suggest that work is currently underway to modify the new guidelines suggested
in the report.
It is
interesting to note that the committee’s report does not address the issue of
certification requirements for films available on online streaming platforms.
In March 2016, the CBFC had suggested that it would require all or film-makers,
producers, and directors in India to sign an undertaking stating that they would
not share with / release ‘excised portions of a feature or a film to anybody’,
including streaming service providers.An affidavit to this effect was accepted
by the Punjab & Haryana High Court, which suggested in its order that such
steps would be sufficient to ensure that ‘censored’ content would not be
available. However, later that year, the Ministry of Information and
Broadcasting confirmed in a response to an RTI application, that they do not
intend to regulate or censor online content.