The following is an excerpt from the 2013 Report Of The Committee Of Experts To Examine Issues Of Certification Under the Cinematograph Act, 1952, chaired by the author.
Cinema is an artistic expression of ideas, stories and often opinions, sometimes inspired by reality occasionally set to music, designed to enthrall, enchant, or simply to entertain. There are few other mediums of communication that can claim rival levels of pervasive influence and presence in our daily lives.
History shows that films have sparked off political debate and threatened governments, heralded social change causing society to deviate from age-old dogma and also sent real life lovers to their death in their misplaced hope of emulating the classic romances. It is perhaps in salute to such impelling powers of persuasion that it is the only form of art, deemed fit to be regulated by an Act of Parliament.
The present Cinematograph Act was enacted in the year 1952. Cinema has undergone a radical change since. The medium of cinema, the tools and technology associated with it and even its cherished audience have metamorphosed through time. Upon this Committee falls the task of reviewing and recommending legislation, which will regulate, certify and license facets of this ever changing and precocious art form. We have endeavored to accomplish this task to the best of our ability.
From the Preliminary Statement of the Report Of The Committee Of Experts To Examine Issues Of Certification Under the Cinematograph Act, 1952 (28th September 2013, chaired by the author (the “Mudgal Committee”) paras. 1 and 2. [Editors’ Note: The committee was tasked with recommending ways in which India could transition from censoring films to certifying them much like the Motion Picture Association of America rates films by categories of viewers. The author, a former Chief Justice of the High Court of Haryana and Punjab, was the Chairperson of that committee.]
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Unfortunately for India’s film industry, the change in name of India’s film censorship body from the “Central Board of Film Censors” to the “Central Board of Film Certification” (“CBFC”) did not improve the film certification process. The Board continues to function as a censorship board and not as a certification board.
Several key problems in the workings of the CBFC remain. These include political appointments of Board members, a vague rating system open to wide interpretation, and an appellate panel of limited jurisdiction.
As mentioned by the Mudgal Committee Report of the Committee of Experts:
At almost every public hearing/ interaction held, the Committee was faced with grievances put forth by producers, directors, and Associations etc. that the present procedure for appointment of members of the Advisory panel, their eligibility criteria and the quality of such panel is far from satisfactory. At certain locations, members of such advisory panel lack any form of cinematic understanding, they perceive their role to be that of a Censor Board to cut and chop scenes and in some cases being affiliated to some political, religious or social group, impose without restraint, such political, religious or personal opinions upon content permissible in a film. As by way of a few examples, the Committee came across complaints where panel members had objected to use of words such as “boyfriend” or “kiss” used in a scene or even the uncharitably humorous representation of a political figure etc.
Report of the Mudgal Committee, Ch. 4, para 13.1.
Politically affiliated appointees continue to serve on the CBFC which is the advisory panel that reviews and certifies films. There are still no criteria for the qualifications necessary to serve on the panel, nor on the overall composition of the Board, nor, even on the mode of appointment of panel members. The present appointments to the panel are largely of persons whose political allegiance is with the party in power.
Presently, panel members tend to view any given movie through a political prism with the aim of censoring the movie to satisfy a political end, instead of watching the movie as a movie alone and only making suggestions/recommendations if need be. On several occasions the panel members are affiliated with particular political, social or religious groups and impose such political, religious or personal opinions on the content of the film which is fit for screening. Therefore, the creativity of the film maker lies at the mercy of the advisory panel reviewing it.
Thus, framers of further reforms must take the utmost care to ensure that the process of selection and appointment of such panel members is autonomous. The objective should be that panel members are both eligible as well as suitable to discharge the all-important function of deciding what films the citizens of this country should be permitted to watch.
The Classification or Rating System
The limited classification of films available today is also a major concern. Only four classifications currently exist:
“U” (unrestricted public exhibition),
“U/A” (unrestricted public exhibition with an endorsement),
“A” (suitable for public exhibition restricted to adults) and
“S” (suitable for public exhibition restricted to members of any profession or any class of persons).
The present categories of classifications are insufficient, given the innumerable subjects, complex themes and content of the movies being produced today. More particularly, the category of U/A has been found to be inadequate and there is significant ambiguity as to the contents of the films which would classify as U/A. There is also uncertainty in the mind of a prospective viewer as to what to expect when a film is categorised as U/A.
Another concern is that after certification of a film, religious groups/ individuals/ authorities may demand banning of the film under threat of demonstrations outside theaters. Their sentiments should be eschewed and it should be the responsibility of the State Government to see that there is peaceful screening of the movie after a Certificate is granted to a movie.
Under the mandate of the present legislation only the applicant for certification may refer an appeal to the Film Certification Appellate Tribunal (“FCAT”). Therefore any other person aggrieved by the decision of the certification board is only left with the option of moving the High Courts and different High Courts take different stands. The limited jurisdiction of FCAT sometimes even leads to the unscrupulous elements stalling a movie by taking the aid of the High Courts by filing a Writ Petition (under Article 226 of the Constitution of India). By the time the Court decides the fate of the movie the movie has lost its business and it does not matter to the film maker thereafter whether he succeeds eventually in the Court as the interim order banning the film has already caused irreparable damage to the producer of the banned film.
Therefore, it is essential that the jurisdiction of the FCAT is enlarged so as to lessen the burden of the Courts and also provide respite to the film Industry from frivolous petitions being filed against them marring their business.
The innumerable requests made by the film industry for revision of the Cinematograph Act, 1952 to the Ministry of Information and Broadcasting and the innumerable complaints made by various activists, political, religious groups, led to the Ministry in 2013 forming a Committee of Experts headed by the author, to examine issues of certification under Cinematograph Act 1952. Other members of the Committee included eminent persons connected with the film industry and law such as film actress Sharmila Tagore (best known in the West for her performances in the third of Satyajit Ray’s Apu Trilogy, Apur Sansar (“World of Apu”) (1959) and Mira Nair’s Mississippi Masala (1991), renowned Bollywood music composer, writer and lyricist, Javed Akhtar, L. Suresh, Secretary of the South Indian Film Chamber of Commerce (and former President of the Film Federation of lndia), Bharatanatyam dancer and choreographer, Leela Samson (the then Chairperson of the CBFC), Lalit Bhasin, Senior Advocate and President of the Society of Indian Law Firms (“SILF”) (who was the then Chairperson of FCAT) and Ms. Rameeza Hakeem, Advocate.
This Committee of Experts (the Mudgal Committee) held several meetings with representatives of the film industry, film exhibitors, film critics and non-governmental organisations to understand the deficiencies in the existing Cinematograph Act, 1952, and eventually submitted a draft amended Cinematograph Bill in 2013..
In the draft bill the Committee made certain recommendations which, if implemented, may resolve many of the problems and issues raised time and again by the film industry.
The recommendations made by the Expert Committee in brief can be encapsulated as follows:
The Committee recommended that the Board set up a Committee comprising of 9 members representing diverse languages and at least two women members to ensure gender diversity. Such Committee would then prepare a list of members, which should be twice the number of vacancies in the advisory panel (Screening Panel), who in the opinion of such Committee, by reason of their profession, qualifications or experience in the field of art, cinema, drama, law, literature, history, sociology, psychology, media, education, performing arts, or public administration are deemed fit to judge the effect of the film on the public. These qualifying criteria have been designed in relation to subjects which have a direct or indirect bearing on cinema and its content. It was for the Government to appoint members from the panel submitted by the said committee. This ensured professionalism in the preparation of the panel and yet gave the Government sufficient discretion to choose reviewing panel members.
The Committee opined that the provisions in the Act dealing with guidelines for certification must include provisions that protect artistic and creative expression on the one hand while requiring the medium of cinema to remain socially responsible and sensitive to the values and standards of society on the other. A parameter was suggested that required the members of the Screening panel/Board to view a film in its entirety from the point of view of overall impact, in the light of the theme, context and story of the film and the persons and the period of time to which the film relates. The committee had come across instances where members of the Advisory Panel (Screening Panel) had scrutinized a scene from the perspective of a stand-alone scene as opposed to its contextual and thematic value.
The salient recommended statutory provision of the bill reads as follows:
“15. Constitution of screening panels –
(1) The members of the screening panel shall be selected by a Committee comprising of 9 members constituted from the Board by the Chairperson with at least two lady members and in such manner as to ensure due regional and language representation, to the extent possible.
Provided that it will be open to the Chairperson to invite any member of the Board as an ad hoc additional member of the screening panel to ensure regional representation.
(2) Such Committee in consultation with the Chairperson shall draw up a panel of members to be appointed as members of the screening panel and shall consist of persons, who, in the opinion of the Committee are by reason of their profession, qualifications or experience in the field of art, cinema, drama, law, literature, history, sociology, psychology, media, education, performing arts or public administration, are fit to judge the effect of films on the public.
Explanation – For the purpose of this Section, it is clarified that ‘public administration’ means the study, development and implementation of public policy and functions.
(3) Such panel of members, which shall be at least twice the number of vacancies, shall be forwarded by the Board to the Central Government who shall from such panel forwarded, appoint the members of the screening panel.
Provided that at least one third of the total number of members on a screening panel shall be women and shall as far as possible be representative of professions or areas of experience set out in sub Section (2) above.
Provided further that all the categories specified in sub section (2) would, as far as possible be represented equally in the panel formed by the Government.
(4) A member of a screening panel shall hold office during the pleasure of the Central Government
(5) Subject to sub section (4) above, every such member shall hold office for such period not exceeding two years and shall be eligible for re-appointment for one period not exceeding one more term.
(6) It shall be the duty of every member of such screening panel, whether acting as a body or in committees, as may be provided in the Rules made in this behalf, to examine, the film and to make such recommendations to the Board as it thinks fit.
(7) The members of the screening panel shall receive such fees or allowances as may be prescribed.”
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The Committee recommended a revised form of classification which comprised of the following categories of public exhibition being that:
U Unrestricted exhibition;
12+ Appropriate for exhibition to persons who have completed 12 years of age;
15+ Appropriate for exhibition to persons who have completed 15 years of age;
A Restricted to adults; and
S Restricted to members of any profession or any class of persons, having regard to the nature, content and theme of the film.
The Committee recommended strong pictorial representation and colour coding of the certificates which would easily and clearly communicate the nature of such certification in the following suggested provision.
“22 Certification of films –
(1) If, after examining a film or having caused it to be examined under this Act and the rules made thereunder and having regard to the material in the film the Board is of the opinion that–
- a) the film is suitable for unrestricted exhibition, it shall grant to the person applying for a certificate in respect of such film a “U” certificate and cause the film to be so marked in the manner as may be prescribed; or
- b) the film is suitable for exhibition to persons who have completed twelve years of age, it shall grant to the person applying for a certificate in respect of such film a “12+” certificate and cause the film to be so marked in the manner as may be prescribed; or
- c) the film is suitable for exhibition to persons who have completed fifteen years of age, it shall grant to the person applying for certificate in respect of such film a “15+” certificate and cause the film to be so marked in the manner as may be prescribed; or
- d) the film is suitable for exhibition restricted to persons who are adults, it shall grant to the person applying for certificate in respect of such film an “A” certificate and cause the film to be so marked in the manner as may be prescribed; or
- e) the film is suitable for exhibition restricted to members of any profession or any class of person, it shall grant to the person applying for a certificate in respect of such film a “S” certificate and cause the film to be so marked in the manner as may be prescribed:
Provided that the certificate granted in respect of any film by the Board before the date of commencement of this Act shall be deemed to be the certificate under this Act;
(2) Where the Board passes any order under Section 20 or Section 21 herein, it shall record reasons in writing for doing so.
(3) Before the issuance of a certificate granted under this section, the applicant or his authorized representative shall deposit, at his own cost, a married print of the film (i.e., a film with an optical sound track), in the same format in which it has been certified or in such other format, with such agency or agencies, as may be prescribed, for archival purpose and record thereof.
(4) A certificate authorizing the public exhibition of any film shall be in such form, signed, displayed and notified in the manner as may be prescribed,
(5) Subject to the provisions of this Act, a certificate granted for a film by the Board under this section shall be valid throughout India for all formats or gauges of that film except that a certificate issued for release of a film on video format shall be valid for its theatrical release with an endorsement to that effect.”
The Committee recommended that, where required, such order or suspension of exhibition be passed not prior to the intended screening, but after and during public exhibition. This would satisfy two important criteria. Firstly, as noticed by the Hon’ble Supreme Court in the case of Aarakshan i.e. Prakash Jha Productions &Anr.Vs. Union of India & Ors. now reported as (2011) 8 SCC 372, the very term “suspension of exhibition” presupposes that public exhibition has already taken place, is on-going and the need has arisen to ‘suspend’ such exhibition any further. Secondly, passing such an order in a given case after and during such public exhibition will also enable the authorities to arrive at an actual and proper assessment of the apprehended breach of public order or its likelihood, since the film is in public domain, being publicly exhibited and actual public reaction can be garnered and assessed. An opinion formed on such material is likely to be more objective, based on reality and actual facts rather than a perceived and/or distant likelihood of breach of public order.
The State Governments also for reasons, political and irrelevant ban the screening at a film on the specious ground that a law and order situation would arise. A motley crowd of troublemakers demonstrating at cinema halls on some occasions are reasons enough for the State governments to stall the screening of a film. This has led to the proposed recommendation by the expert committee as under in the 2013 Bill.
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The major difficulty encountered by film makers was the proliferation of fringe elements who for the sake of catching the public eye create trouble for the screening of films on the ground that the film hurts the sentiments of a particular community/group. This is generally done by going to a civil/writ court very close to the release of the film leading to financial and other troubles for the film maker when interim orders restraining the release of the film are passed. Most of the films are financed with a tight repayment schedule and any delay in the release of the film leads to a financial mess for the film producer. Occasionally collusive litigations are filed so as to garner publicity for the film. The vast network of judicial fora i.e. 24 High Courts with writ jurisdiction and vast numbers of civil courts in numerous States give a handle to the litigant to stall a movie to garner publicity or to extract its pound of flesh from the producer of the film. This is what persuaded the Expert Committee to recommend in the 2013 bill, the enhancement of jurisdiction of the FCAT so as to ensure that there is only one forum where film certification related disputes can be litigated.
The Committee recommended that:
The jurisdiction of the FCAT should be expanded to permit appeals by any person aggrieved by any order/certification passed by the Board. FCAT should be given the power to grant interim orders in addition to the present power. The infrastructure of the FCAT should be commensurately augmented in consultation with the Chairperson of the FCAT, including increasing the number of Members and/or benches;
A right of appeal only to the Supreme Court be provided for from orders passed by the FCAT
“31. Appeal –
(1) Where any person is aggrieved by any order of the Board or of the Central Government, or of any other authority that affects and relates to the exhibition of a film, such person may, within a period of thirty days from the date of such order, prefer an appeal to the Appellate Tribunal.
Provided that the Appellate Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the aforesaid period of thirty days, allow such appeal to be admitted within a further period of thirty days by passing a reasoned order.
(2) Every appeal under this section shall be made in writing and shall be accompanied by a brief statement of the reasons for the order appealed against, where such statement has been furnished to the appellant, and by such fees, as may be prescribed.”
Guiding Principles in Evaluating a Film
On the issue of guidelines, the Committee recognized in its Report:
This aspect was perhaps the most vexed issue, which the Committee encountered. Across the country, the Committee was faced with views and opinions from both ends of the spectrum. While on the one hand, members of the film industry were aggrieved by the fact that films are viewed through a conservative and unnecessarily moralistic prism, on the other hand, women groups and social organizations were of the view that too far and great a latitude is being given to film makers. Such a contra distinctive spectrum of views is representative of nothing but the age-old debate between tradition and change. The Committee is of the opinion that there can never be watertight and rigid guidelines for certification of films. Cinema is a form of art and by its inherent character, capable of varied forms of representation and consequently myriad forms of interpretation. The courts have over the years attempted to grapple, with little success one might add, to give precise meanings to terms such as morality, obscenity and excessive violence etc. These are concepts that are incapable of surgically precise definitions and interpretation of such terms will vary from person to person.
Report of the Mudgal Committee, Ch. 4, para. 14.1.
For overarching guiding principles, the Committee recommended:
The Committee is therefore of the view that the provisions in the Act dealing with guidelines for certification must include provisions which protect artistic and creative expression on the one hand while on the other requiring the medium of cinema to remain socially responsible and sensitive to the values and standards of society. More importantly the Committee strongly regards as necessary, the introduction of a parameter which requires the members of the Screening panel/Board to view a film in its entirety from the point of view of overall impact, in the light of the theme, context and story of the film and the persons and the period of time to which the film relates. We have come across instances where members of the Advisory Panel (Screening Panel) have scrutinized a scene from the perspective of a stand-alone scene as opposed to its contextual and thematic value. Keeping the above in my mind the Committee proposes the following provisions in relation to guiding principles for certification of film.
Report of the Mudgal Committee, Ch. 4, para. 14.3.
The 2013 recommendations of the Mudgal Committee in the form of a Bill is pending with the Government and once permitted to and passed by the Parliament would become an Act. Passage of the Bill would be an important step in taking politics out of the process of film certification and providing guidelines consistent with current societal values and standards by which films are certified for exhibition.
Mukul Mudgal is a former Chief Justice of the Punjab & Haryana High Court. In addition to have served as Chairperson of The Committee Of Experts To Examine Issues Of Certification Under the Cinematograph Act, 1952 in 2013, he was appointed in 2014 by the Supreme Court of India to Chair a committee to conduct an independent inquiry into the allegations of corruption against a family member of the chief of the Board of Control for Cricket in India (“BCCI”), and others, including several players. The committee was also given the larger mandate of investigating allegations of betting and match-fixing involving players in Indian (Cricket) Premier League matches in 2013 . The Committee issued its report in January 2015 to the Supreme Court of India and found evidence of significant wrongdoing. Justice Mudgal is presently based in New Delhi and can be reached at email@example.com