This article is written by Gurkaranbir Singh, 3rd Year Student, Symbiosis Law School, Noida.
The central government has recently come up with a proposal amending the Cinematograph Act, 1952 to regulate the artistic and creative expressions of filmmakers. It has been done by amending the Cinematograph Act, 1952 through Cinematograph (Amendment) Bill, 2021.
At the outset, the bill purports to make three new changes i.e., first, as per the Mudgal Committee and Benegal Committee, it seeks to subdivide the vague and ambiguous U/A category of films into age-based categories. The committees’ rationale behind this proposal is based on the widely accepted international norms. It states that given the myriad of subjects, themes, and content of the movies/series, the present legislation is insufficient in cataloguing this diverse content, thus the amendment. Second, with the increasing number of piracy cases and the non-regularisation of the same, the government seeks to insert Section 6AA and sub-section (1A) in Section 7. Last, it seeks to remove judicially invalidated Section 6 (1) of the Act. Along with this, it seeks to include a proviso with it, giving “revisionary power” to the central government to refer a certified film back to the Central Board of Film Certification (CBFC) for re-examination. This proviso [Proposed Amendment] has created a stir among the film fraternity, which asserts this new provision as, “super-sensor,” and adding more layers of scrutiny and censorship.
The present article seeks to argue that the newly proposed amendment is legally and most importantly constitutionally is unsustainable. The author argues that,(i)the amendment indirectly and improperly overrides the well-settled judicial precedents,(ii)it seeks to bestow untrammelled and uncontrolled discretionary power to the government under the garb of revisionary power, (iii)seeks to control freedom of speech and expression by inappropriately invoking Article 19(2) of the constitution, and (iv)misuses and overlooks the rules of interpretation while working the proviso appended to the sections.
OVERRULING JUDICIAL PRONOUNCEMENTS
Section 6(1) of the Act, used to empower the central government (on its own motion and at any stage) to call back any certified film by the CBFC for re-examination. If it is found to be detrimental to society, it may proceed to give a certificate of an uncertified film or it may proceed to suspend the exhibition of a film for a particular time period. This provision was challenged in K.M. Shankarappa, and the Supreme Court declared this provision unconstitutional. The court declared it so on the grounds that, it violates the judicially settled prose of Separation of Powers, it enables the executive to perform the function of judicial review, and last that, it subsequently meddles with the judicial functions. It further stated that by re-examining the already certified films, it sets at naught the decisions passed a competent quasi-judicial body.
Though the proposed bill seeks to do away with a judicially invalidated provision, on the other hand, it purports to give the power back in the form of revisionary power by adding a proviso to sub-section 1 of Section 6. The government considers that the legislature is empowered to overrule a judicial decision however, in justifying the same; the government fails to understand the foundational principles of Separation of Power in its entirety. In numerous decisions, the Supreme Court has held that this principle forbids the legislature to nullify a judicial decision by way of enacting new legislation or a mere declaration. However, the legislature is empowered to enact a new law that takes away the substance of a judicial decision by curing the legal infirmities ingrained in it.
Thus, the author contends that the proposed bill does not cure any legal infirmities rather; it seeks to restore the position of the government by overruling settled judicial precedents.
SHOWERING UNBRIDLED DISCRETIONARY POWER
The proposed revisionary power in this bill seeks to empower the government to re-examine the certified films by the CBFC, if any, complaint is filed under the grounds mentioned in Section 5B (1).Essentially, it means that a film that has been certified by the CBFC is placed in abeyance till the CBFC re-examines it on a complaint filed under the grounds mentioned in Section 5B (1).
It is imperative to note here, that, in Shreya Singhal v. Union of India, the Supreme Court heavily focussed on the aspect of “procedural safeguards.” One of the vital and crucial considerations in upholding the constitutionality of Section 69A of the Information Technology Act, 2000 was the presence of procedural safeguards while restricting free speech expression. Further, a careful study of the Cinematograph Act, 1952, would equip the reader to identify that in most of the provisions, these procedural safeguards have been taken care of.
However, it is unfortunate to assert that no consideration has been given to procedural safeguards in the proposed bill, thereby showering unbridled discretionary power to the authority. The author argues that in light of the established principles of Natural Justice and some similar safeguards which are already present in the Act, the proposed bill must incorporate the following procedural safeguards: a. providing notice of such complaint received by the government; b. providing an opportunity of being heard (Audi Alteram Partem); c. Conducting a pre-decision hearing and, if found justified moving forward with the complaint, then, subsequent issuance of a reasoned order unfolding the explanation of exercising revisionary authority.
LEGAL STANDARD FOR CURTAILING FREE SPEECH
While curtailing the freedom of speech and expression, the Supreme Court has consistently employed the “Proportionality Test” in its various judgments, underscored in the exemplary cases of Anuradha Basin v. Union of India and Puttaswamy(Aadhar Case). As per this test, the court evaluates whether the tool employed by the government turns out to be a “least restrictive” one or not. If the purported goal can be achieved by using a less intrusive mechanism, then, the court will declare the law as unconstitutional. It further postulates a duty upon the government to create a balance between achieving the purported goal and limiting a constitutionally guaranteed right.
It is interesting to note here, that the proposed bill seeks to address the complaints filed under the grounds mentioned in Article 5B (1), however, the grounds mentioned under the Section are derived from Article 19 (2).The author argues that the nexus between the proposed bill with a constitutional provision limiting free speech can be justified when it comes to “legitimate purpose,” “rational nexus,” or “balancing mechanism” but it fails to satisfy the “necessity prong” as per the proportionality test. To illustrate this, the central government or a local authority is already empowered under Section 13 of the Act to suspend the screening of a film, if it destabilises public order or is likely to cause a breach of public peace. Thus, the existing Act, 1952 does not leave any lacuna which this proposed bill is seeking to cover, since an already existing provision is there in the act to cover such instances where an exhibition is likely to create public disorder.
Further, Section 13 is less restrictive because first, it allows suspending the exhibition of a film for a limited time period i.e., 2 months, however by virtue of this proposed bill and revisionary power under it, it can be suspended permanently on re-examination by CBFC and its certificate can be revoked. Secondly, Section 13 entails procedural safeguards including a mandatory requirement of giving a reasoned order behind the suspension. Lastly, Section 5B (1) employs grounds mentioned under Article 19 (2) without procedural safeguards, and it is imperative to note that, any complaint can be filed under the garb of “Public order,” and “Decency or Morality” mentioned under Article 19 (2) with having no procedural safeguards under Section 5B (1). Thus, it is argued, since the proportionality test mandates that all its ingredients must be fulfilled, a non-fulfilment of even one ingredient of the said test renders a law unconstitutional. The proposed bill is likely not to survive the constitutional scrutiny, if it gets challenged in a judicial theatre.
NEGATING THE SETTLED RULES OF INTERPRETATION
As mentioned above, the proposed bill seeks to confer unfettered revisionary power on the government by appending a proviso to Section 6(1). However, it is pertinent to note, that as per the principles and rules of interpretation, the Supreme Court in Nagar Palika Nigam v. Krishi Upaj Mandi Samiti and ors has held that a proviso should only work to qualify something enacted in an Act or except something out the enactment. It stated that a proviso does not and cannot travel beyond the provision to which it is attached. Further, in Delhi Metro Rail Corporation Ltd v. Tarun Pal Singh and ors, while enumerating four different purposes that a proviso serves, the court held that a proviso appended to a Section is intended to take out a part from a Section for special treatment and it is not expected to enlarge the scope of the Section to which it is appended.
However, the newly proposed bill works in a diametrically opposite fashion to the established judicial precedents in this regard. By conferring unfettered revisionary power and enabling the government to sit over the already settled decisions of the CBFC, it enlarges the scope of the provision and belittles quasi-judicial decisions. Therefore, as per the judicial precedents and principles of interpretation, this proviso must be re-considered.
Under our Constitution, the right of freedom of speech and expression mentioned under Article 19 (1) is not an absolute right and, as a result, it is subject to reasonable restrictions. The proposed amendment bill seeks to confer revisionary power to address complaints about a certified film by invoking Article 19 (2), however, it fails to understand and take into its account the “overbreadth” and “chilling effect” that this bill would create. An overbroad statute could potentially hold the capacity to prohibit both speech and expression that the state is entitled to prohibit, as well as, which it is not. As a result of the unfettered power conferred by an overbroad statute, it creates a chilling effect whereby it leads to self-censorship. The end result of both overbreadth and chilling effect is that constitutionally guaranteed legitimate speech is proscribed.
Therefore, the proposed amendment bill suffers from the vice of excessive power when compared to lesser excessive mechanisms such as suspending a certified film. Further, comparatively, CBFC is a much stricter body to its contemporaries such as the British Board of Film Classification (BBFC) and the U.S based Classification and Rating Administration (CARA). Therefore, in light of the arguments advanced above, the author argues that the proposed bill needs to be re-considered.