“The Government has chosen to establish a quasi-judicial body which has been given the powers, inter alia, to decide the effect of the film on the public. …its decision…would be final and binding so far as the Executive and the Government is concerned. To permit the Executive to review and/or revise that decision would amount to interference with the exercise of judicial functions by a quasi-judicial Board. It would amount to subjecting the decision of a quasi-judicial body to the scrutiny of the Executive. …without enacting an appropriate legislation, the Executive or the Legislature cannot set at naught a judicial order. The Executive cannot sit in an appeal or review or revise a judicial order.”

These emphatic words and the firm commitment towards the constitutional principle of separation of powers were expressed by a division bench of the Supreme Court in Union of India v/s K.M. Shankarappa on November 28, 2000.

This section – “… without enacting an appropriate legislation, the Executive or the Legislature cannot set at naught a judicial order” – is what has triggered the Ministry of Information and Broadcasting’s proposed Cinematograph (Amendment) Bill 2021.

The proposed Bill, for which the ministry has invited public comments, intends to make four changes to the Cinematograph Act, 1952:

1. It proposes to keep the validity of a censor certificate in perpetuity rather than requiring renewal every ten years.

2. It proposes to bring in three additional age-based categories in the existing U/A category: U/A 7+, U/A 13+ and U/A 16+.

3. It proposes enabling provisions to check film piracy in the Act itself.

While these proposals are seen as harmless, the film fraternity is focusing on the fourth:

4. It proposes an addition of a proviso to sub-section (1) of section 6 of the Cinematograph Act, 1952, which says the Union government can ask the chairman of the censor board to re-examine a film even after it has been certified for public exhibition.

Per se there is nothing completely new in what the ministry is proposing. In fact, if we see the prevalent provisions of the Act, which we are either ignorant about or don’t pay enough attention to, the Union government is already allowed to play an overpowering role in the whole process of granting films a ‘censor certificate’ for public exhibition.

To begin with, the Central Board of Film Certification, consisting of its chairperson and members ranging from 12 to 25, is appointed by the Union government. Regional centres, regional officers and regional advisory panels are also appointed by the Union government. How many regional officers there should be, their eligibility criteria and other operative rules are decided by the Union government. The most powerful sub-section of the Cinematograph Act, 5B(2), empowers the Union government to “issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition”.

The powers to constitute the Appellate Tribunal and to appoint its chairperson, four members and a secretary were also with the central authority. We say were because the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, replaced the Appellate Tribunals with high courts. This is further proof of the Union government’s omnipotence. The powers of suspension and revocation of a certificate in case of a violation of rules are given to the Union government. Shockingly, the review powers of such un-certification are also given to the government. Even worse is that the board “shall dispose of the matter in conformity with the order” passed by the Union in this review.

Over and above these powers, the Union “of its own motion, at any stage” of the certification process or even after the board’s or tribunal’s decision, could “make such order in relation thereto as it thinks fit, and the Board shall dispose of the matter in conformity with such order”. This revisional power of the Central government, sanctioned by Section 6(1) of the Act, was challenged by the Kannada writer and director K.M. Shankarappa in the Karnataka high court.

Pursuant to the route indicated by the Supreme Court to tilt the balance of power towards the executive/legislature, the ministry has now tightened its grip. The reasonable restrictions upon the freedom of speech and expression specified in Article 19(2) of our constitution always shield the government’s controlling efforts. Any objection gets muted upon invoking these restrictions “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement of any offence”.

The government is proposing to use the same constitutional basis to insert the new proviso to the Section 6(1). If we understand the totality of powers and the scheme in which the same are bestowed upon the Union government, nothing much can be done at this stage. Let us wait till the actual wording gets articulated in the Amendment Act.

In fact, the existent proviso to Section 6(1) inserted in 1981 with effect from June 1, 1983 is more disagreeable than the proposed insertion which at least intends to let the chairman of the board re-examine the film upon the government’s revisional direction. See the language of the present proviso: “…further that nothing in this sub-section shall require the Central Government to disclose any fact which it considers to be against public interest to disclose.”

In January 2017, we challenged the constitutionality of certain sections of the Cinematograph Act, 1952, including:

1. The board’s power (under Section 4(1)(iii) introduced in 1981) “to direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition”.

2. The vague, over-broad and ambiguous objectives laid down in the 1991 guidelines, such as, “The medium of film remains responsible and sensitive to the values and standards of society”, or “provides clean and healthy entertainment”, or “is of aesthetic value and cinematically of a good standard”. When what constitutes “values and standards of society” is in itself not definitive at any given time, empowering the board to hold the moral compass leads to subjective, arbitrary and erroneous decisions during the certification process.

3. All the 19 guidelines specified in clause 2 have abstract, imprecise phrases such as “pointless or avoidable scenes of violence, cruelty, horror”, “scenes which have the effect of justifying or glorifying drinking”, “scenes involving ridicule of physically and mentally handicapped persons”, “human sensibilities are not offended by vulgarity, obscenity or depravity”.

Ultimately, the fate of the scene/film hangs on an individual member’s interpretation and discretion, which amounts to an unreasonable restriction on the filmmaker’s freedom of speech and expression under Article 19(1)(a). If the purpose of a film is to create awareness about child labour, unless the abusive practices and cruelty to children are depicted, the film will be ineffective. In such a situation, the board can demand cuts to various scenes from the said film pointing at the guideline stating “showing children as being subjected to any form of child abuse” is disallowed. Such abstract guidelines can lead to rampant incoherent and erratic decisions.

Our writ petition has been pending since April 17, 2017, when “Notice was issued returnable in four weeks”. It has not moved further an inch. It was a mammoth task challenging the decision in the K. Abbas case, since the petition would need to be heard by a bench of nine judges. Despite out lifelong crusade against film and theatre censorship, we will die with grief over the fact that we could not cause even a dent in the system.

The authorities routinely ignore the crucial guideline in the Shankarappa judgment that when an excuse of ‘law and order situation’ is raised,

“It is for the concerned state government to see that law and order is maintained. In any democratic society there are bound to be divergent views. Merely because a small section of the society has a different view, from that as taken by the Tribunal, and choose to express their views by unlawful means would be no ground for the Executive to review or revise a decision of the Tribunal. In such a case, the clear duty of the Government is to ensure that law and order is maintained by taking appropriate actions against persons who choose to breach the law.”

As we stand at the intersection of freedom and state control, the judiciary is the only hope. Though that hope has also faded in recent years, our challenge is to not give up the Sisyphean fight to set governmental authoritarianism at naught.

(Amol Palekar is a nationally and internationally acclaimed actor and director who is active in the fields of performing and visual arts for the past five decades. Sandhya Gokhale is a lawyer, writer and film maker. Courtesy: The Wire.)