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Finding a Balance Between Rights and Restrictions: An Analysis of The Cinematograph Bill, 2021

Updated: Sep 22, 2021



INTRODUCTION

The Cinematograph (Amendment) Bill, 2021 (hereinafter ‘the Bill’) was announced by the Ministry of Information and Broadcasting, in June 2021, with the objective to tackle the menace of film piracy. The Bill’s objective is to ensure increased effectiveness in the process of film certification for exhibition along with curbing the nuisance caused due to piracy of the films. However, it has encountered severe backlash due to its controversial provisions which undermine the authority established in the original Act, as well as the variance of these provisions with the existing anti-piracy provisions.


WHAT IS THE CINEMATOGRAPH ACT, 1952?

The objective of the Cinematograph Act, 1952, to which the aforementioned amendments are proposed, is to consolidate the laws regarding censorship in India. It establishes a set of guidelines to ensure that the expressions and opinions conveyed by the exhibition of films are in accordance with the standards of public morality. For this purpose, the Central Board of Film Certification (hereinafter CBFC) was formed as the Central governing authority for exhibited films. The original Act created two categories of film certification i.e., ‘A’ for restricted viewing (Only for Adults) and ‘U’ for unrestricted to ensure that an age-appropriate audience is present for any film exhibition. In 1983, two more categories were added namely, ‘U/A’ for unrestricted exhibition subject to parental guidance for children below 12 years and ‘S’ for specialised audiences.


THE PROPOSED PROVISIONS

The Indian film culture and its certification has been governed by the CBFC for the past few decades. In multiple instances, the CBFC has taken stringent measures to address issues regarding sexuality, feminism, drug abuse and other controversial topics which have led to post-heavy cuts in movies such as Haider (2014), Udta Punjab (2016), etc. But the recent controversy following the release of the web series Tandav led to a wide scale public outrage. The series was considered as a misrepresentation of Hindu Gods and the religious sentiments associated with it which led to the proposition of the amendment Bill. The Bill in its current form is a revised form of the amendments proposed in 2019. It proposed the following changes to the 1952 Act-

  • Introduction of new certification categories

Section 3(a) of the Bill is regarding the certification of films under ‘Unrestricted exhibition’. The Bill introduces age-based sub-categories under the existing U/A category of certification, viz., U/A 7+, U/A 13+ and U/A 16+.

  • Change in validity of the certificate

Section 3(b) proposes an amendment to Section 5 A (3) vis-à-vis the validity of certification. The amended provision provides for the alteration of the validity of the certificate from 10 years to ‘perpetuity’.

  • Altering the revisional powers of the Central Government

Section 3(c) intends to alter the revisional powers of the Central Government under Section 6. The existing Act grants the authority to the Central Government to call for a record of proceedings regarding the certification of any film and pass any order as it deems fit. However, in the case of KM Shankarappa Vs. Union of India, the Court had stated that this Section does not give revisional power to the Central Government with respect to the films already certified. The proposed Bill cites Article 19(2) to introduce reasonable restrictions in cases complaints against films are received after it is certified. Section 3(c) of the Bill thus proposes removal of the provisions of Section 6(1) of the principal Act, which were struck down by the Court to exclude certified films from the ambit of the Central Government’s authority. Further, the Bill also proposes adding a proviso to Section 6(1) to grant revisionary powers to the Government in cases of violation of Section 5 B of the 1952 Act which provides the principles for certification of films. The Bill cites that Section 5 B derives its authority from Article 19(2) and thus is deemed to be non-negotiable.

  • Introduction of Anti-piracy provisions

Section 3(d) of the Bill proposes introduction of an anti-privacy provision. It states that since illegal duplication is the origin point of piracy, it is imperative to include an enabling provision to check piracy in the 1952 Act. This provision proposes introduction of Section 6 AA to prohibit unauthorised recording for the purpose of making copies of a film or a part thereof. Further, the Bill proposes introduction of Sub-Section 7(1)A as a penalising provision in case of contravention of Section 6 AA. Such contravention is proposed to be punishable with imprisonment for a term ranging from 3 months to 3 years, along with a fine of 3 lakh rupees to the extent of 5% of the gross production cost.


CRITICAL RECEPTION

This Bill has been severely criticised for its provisions regarding the reinforcement of the Central Government’s authority over the CBFC and the introduction of the anti-piracy provision.

Primarily, with respect to the proposed amendment to the Revisional powers of the Central Government under Section 6, a violation of the basic structure of the Constitution of India is apparent. In the case of KM Shankarappa, the Court had clearly enunciated the extent of the Central Government’s powers to not include revisionary power over a certified film. The inclusion of the same by the Bill thus infringes the principles of Judicial review, which is a part of the basic structure. Further, the uninterrupted grant of power to the Central Government violates Article 19(1)(a) of the Constitution by hindering the freedom of expression through film exhibitions.

Secondly, the bone of contention regarding the proposed Section 6 AA is its ambiguous nature. The proposed provision reads as follows:

“6 AA. Notwithstanding any law for the time being in force, no person shall, without the written authorization of the author, be permitted to use any audio-visual recording device in a place to knowingly make or transmit or attempt to make or transmit or abet the making or transmission of a copy of a film or a part thereof”

The phrases used in the framing of the issue, such as ‘in a place’ and ‘a film or a part thereof’, imply a broad scope of interpretation which in turn leads to vague applicability of the provision. Thus, the questions such as ‘what constitutes a film?’ and ‘whether the intention/purpose is relevant?’ remain unanswered. The broad scope of the proposed provision thus ends up including all types of films of any length being copied for any purpose.

The proposed Section provides for no provision for the exceptions generally recognised vis-a-vis piracy such as in the case of non-commercial use of the clips for memes, jokes or any form of parody, etc. This counters the objective of the Copyright Act, 1957 which other than protecting the author’s right also includes promotion of culture and expression in the society. The said provision may also be argued as an unreasonable restriction on Section 19(1)(a) due to the implicit inclusion of non-commercial use of audio-visual recordings. Further, it would also complicate assignment of copyrights of any films where the owner and the ‘author’ of the work would be distinct and any person wishing to legally record a film would need permission of both the parties.

Additionally, the punishment for contravention is also disproportionate considering the absence of any distinction of punishments for first time vs. repetitive offenders as well as the vast difference in the fine amount when compared to the Copyright Act. The proposed Section also places a non-obstante clause and overrides the Copyright Act with no rational explanation. It must be understood that the Copyright Act already covers the matter of piracy in films in a non-controversial manner and thus the proposed provisions appear to be unnecessary alterations to the existing law.


CONCLUSION

To summarise, the proposed amendment Bill appears to be causing more harm than improvement. The reintroduction of the Central Government’s powers coupled with the discordance of the anti-piracy provision with the Copyright Act, 1957 only result in a couple of unconstitutional provisions which are deemed to be void ab initio. Further, the additional complications caused due to the nebulous wording of the provisions adds to the distress of the Courts during interpretation. Thus, there is a need to ensure that the proposed Bill is altered substantially enough to ensure the instances of piracy are deterred without obtruding over the citizens’ right to freedom of expression.


BIBLIOGRAPHY



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