Dissolution of the Film Certification Appellate Tribunal in India

INTRODUCTION

Film Industry in India is one of the biggest film industries in the world. The revenue generated from this industry is valued at 70 billion Indian Rupees, which was recorded in 2020 (1). Both digital and OTT platforms have contributed largely since the Lockdowns in the whole world affecting the traditional film experience. Film Fraternity is known for its creativity and the independent nature of their job, be it films or web series. But sometimes, there are certain blockages in the way of releasing a film, series and etc. The Central Board of Film Certification (hereinafter referred to as CBFC) or popularly known as the Censor Board, at times restricts the release of the films, orders various cuts or the selective audience chosen because of its certification policies. However, film fraternity as of late had been given a ray of hope with the Film Certification Appellate Tribunal (hereinafter referred to as FCAT), functioning with its progressive standards, by being an institution for appeals by the film fraternity against the decisions of the CBFC.

WHAT WAS THE FILM CERTIFICATION APPELLATE TRIBUNAL?

FCAT in India had been setup under the Cinematograph Act, 1951 after the Amendment Act (37 of 1952) of 1981 which included Section 5D which instituted this appellate body, came to be in effect since 1983. Before the institution of this body, any disputes arising from the decision of the CBFC were challenged before the Central government which was taken up by the Ministry of Information and Broadcasting (MoIB) which decided upon the restrictions and the certification of the content in question. The FCAT consists of a Chairperson who is assisted by four members, who are usually of Legal, Film background and a government representative along with a secretary who is appointed by the Government of India. FCAT has always been known to be progressive, so to balance the restrictive approach usually taken by the CBFC.

LANDMARK DECISIONS WHICH WERE HELPFUL FOR THE FILM FRATERNITY

There have been some notable instances of CBFC and FCAT disputing on the edits or the release of the film or the series, and the FCAT stand has always preferred preventing the creation of the Film industry and the art. FCAT with their progressive approach have always tend to protect the integrity of the art and content from the decisions of CBFC.

One of the most controversial films in the Indian film industry was set to be going through a lot of cuts by the CBFC. The movie was ‘Bandit Queen’, but the FCAT reversed the order and stated understand the difference between nakedness, nudity, and obscenity” and hence the movie eventually got released without the inconvenient cuts ordered. A recent example is the large amounts of cuts ordered on the movie ‘Lipstick Under My Burkha’ before its release (3), when the FCAT granted an ‘A’ certificate after suggesting only a few minor edits. In 2016, a movie which starred Nawazuddin Siddiqui was also cleared for a U/A certificate release after CBFC ordered various cuts claiming it to be “very provocative”. FCAT also allowed the release of ‘Padmavat’ wherein the FCAT dismissed a petition to stop to the release of the film (4).

TRIBUNAL REFORMS (RATIONALIZATION AND CONDITION OF SERVICE) BILL 2021

Recently, the Central Government of India introduced the Tribunal Reforms (Rationalization and Condition of Service) Bill 2021, which has dissolved certain appellate bodies and including the FCAT too. Chapter IV of the amendment bill which specifically focuses on the Cinematography Act, includes Section 9 of the Tribunal Reforms Bill, 2021, which has rendered the dissolution of the FCAT by shifting the appellate jurisdiction under the Cinematograph Act, 1952 with the High Court, owing to the jurisdiction of the High Court. FCAT used to hear appeals under Section 5C of the Cinematograph Act, 1952, which now will be heard at the High Court. The provision according to the latest one presented in the Parliament in August, 2021 states that “for the word “Tribunal”, at both the places where it occurs, the words “High Court” shall be substituted;”. This has opened discussions and critiques on the aftermath of this decision and the consciousness that runs in the mind of creators while creating art and content due to excessive restrictions being imposed by the CBFC as of late.

It is unanticipated that Parliament has passed this bill of which a part has also been previously ordered to be struck down by the Hon’ble Supreme Court in the case of Madras Bar Association vs Union of India (2). As per the Section 3 of the Amendment Act, “…a person who has not completed the age of fifty years shall not be eligible for appointment as a Chairperson or Member…”, has been termed as discriminatory. The Apex court stated “is discriminatory because it is neither shown to have a rational nexus with the object sought to be achieved, i.e. appointing the most meritorious candidates; nor is it shown to be based on any empirical study or data that such older candidates fare better, or that younger candidates with more relevant experience would not be as good, as members of tribunals. It is plain and simple, discrimination based on age. The criterion (of minimum 50 years of age) is virtually “picked out from a hat”40 and wholly arbitrary.”

EFFECT OF DISSOLUTION OF FCAT

An appellate tribunal instituted for hearing appeals on decision by the CBFCs being shut and the powers of that body being shifted to the High Courts is not a good sign for the film fraternity at large. As feared by the leading experts in the Film industry, the removal of FCAT will enable the CBFC orders such as certification, stopping of releases and excessive cuts to remain firm as producers will have to approach the respective High Courts, where the pendency of cases remains of a high number and it is unlikely that the appeals will be heard and possibly ever resolved.

Pendency of Cases is a prominent issue in India, which has been eased by the establishments of Tribunals which are specified an area of law and have jurisdiction to hear matters. In a country where we fail to curb serious/heinous crimes like murder and rape, it is unlikely for the courts to allot a big share of time to hear pending cases of the Indian Film industry and disputes arising out of the Cinematograph Act. Hence, Tribunals have been a helping hand for the courts and more specifically in this area, the FCAT has posed to be the institution which hears matters on cases related to certification, censorship and other issues under the Act.

This delay caused due to approaching the High Court will only result in a restrictive approach from the producers in their film making and art in general because of the fear of finding themselves in a never-ending battle with the CBFC orders in the midst of the burden on High Courts.

CONCLUSION

It is clear that the dissolution of FCAT is problematic, not just from the point of view of the film industry, but also as a country where already the rate of pendency of cases is high. And the institutions which help resolve this pendency i.e., the tribunals are getting shut and their powers are getting transferred to Constitutional Courts. This proves to be a restrictive act upon the content creators in the Indian Film Industry who will from now, will have a more changed perspective on creating films, series and will be thinking twice before bringing up a sensitive issue which is purely subjective and hence will take away the freedom from the film fraternity.

The passing of this Bill is a danger sign for the film fraternity because of the effect it has on the Cinematography Act which regulated censorship and certification and shall affect the release of films and web series and content altogether because of a restrictive approach from the film industry from now on because of prospective legal implications. It is only hoped that the lawmakers decide upon a different body/institution altogether to hear appeals from CBFCs or a judicial body solely for the purpose of deciding certification of films and having an appellate authority or a tribunal as well to redress issues arising out of the Cinematograph Act. Hence, it is opined that it is important that the Bill relying solely rely on the High Courts will only result in the delaying in release of films because of burden on the Constitutional courts which will have adverse impact on the whole film industry.

Author:  Nishant Vimal, a 5 th year B.A. LLB. Student at Symbiosis Law School (Hyderabad),  currently an intern at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at vidushi@khuranaandkhurana.com.

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