Introduction
The Cinematograph Act, 1952 (‘the Act’) established the Central Board of Film Censorship, now known as the Central Board of Film Certification (‘CBFC’). The Act’s stated purpose is to provide a mechanism for certifying cinematograph films for exhibition. The CBFC is primarily meant to be a certification body that reviews and classifies films based on certain age-based certification categories. While modifications may be suggested, that is by no means the CBFC’s primary function. However, its way of functioning tells a different story, with several of its decisions sparking controversy; in many cases, the modifications suggested by the CBFC have been based on subjectivity and dubious logic, rather than genuine, well-founded reasons.
This article attempts to highlight the problems with the current framework and posits that the CBFC be replaced with a self-regulatory organisation (‘SRO’), offering suggestions for its practical implementation.
The CBFC: Its Functioning and Problems
Section 4 of the Act states that a person wishing to exhibit a film must apply to the board for a certificate. The CBFC has the option to grant age-based certificates to films based on various factors, such as the degree of violence, profanity, or sexuality depicted, the themes involved, etc. These certificates range from ‘U’, allowing unrestricted public exhibition, to ‘S’, restricting public exhibition to members of a certain profession or class of people. The CBFC also has the power to suggest cuts to the films, subject to which certification shall be granted. The CBFC can refuse certification if the film is against 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 involves defamation or contempt of court, or is likely to incite the commission of any offence.
The CBFC’s powers have been upheld as constitutionally valid. However. the way these powers have been used has often been questionable, if not illogical. To provide but one example, the CBFC directed 89 cuts to be made to the film Udta Punjab. Any reference to "election," "party," "MP," "MLA," and "Parliament" were asked to be removed. Even something as innocuous as the name of a dog called “Jackie Chan” was asked to be changed. Although the Bombay High Court subsequently held only one scene had to be cut, the CBFC’s directions demonstrate the dubious, if not arbitrary use of its powers. Allegations of political bias also exist. In 2002, the changes suggested to the documentary War and Peace included deleting all speeches by politicians, including union ministers and the prime minister. References to Operation West End, a sting operation against members of the then-ruling political alliance were to be deleted. Interestingly, references to the Bofors scandal, which had affected a government led by a different party, were allowed. Such instances raise serious concerns about the fairness of CBFC’s decision-making.
Exacerbating the situation is the abolition of the Film Certification Appellate Tribunal (FCAT) which had heard appeals against cuts and objections imposed by the CBFC. Following the abolition, filmmakers may approach the concerned High Court, in place of the FCAT. However, given the huge pendency, such disputes may take months if not years to be resolved. Many filmmakers would give in to the CBFC’s unreasonable constraints, rather than fight a lengthy legal battle, especially when arrangements for release have already been made. According to filmmaker Anurag Kashyap, “When release dates are fixed and theatres booked, then producers just don’t want to wait” He further lamented that the abolition would make producers reluctant to support “serious films”.
In contrast, the FCAT, which only dealt with disputes regarding film certification, provided a specialised platform for timely and inexpensive redressal of disputes. With the destruction of an effective mechanism, filmmakers potentially face both excessive regulation and the Sisyphean task of a long and costly legal battle to challenge the same.
In the 2010s, two expert committees were charged with reviewing and making recommendations for film certification in India. The Justice Mudgal Committee was formed in 2013, chaired by Justice Mukul Mudgal, a former Chief Justice of the Punjab & Haryana High Court. Three years later, in 2016, the Union Government appointed the Shyam Benegal Committee, headed by veteran filmmaker Shyam Benegal. Both committees agreed that the present certification mechanism is more subjective than objective, demonstrating the need for reform. The Shyam Benegal Committee recommended that the CBFC should merely be a certification body, without powers to make changes to films.
From the above, the shortcomings of the CBFC are more than evident. The next section shall provide an argument for an SRO.
The Case for an SRO
As an alternative to the CBFC, it is suggested that an SRO be established. An SRO is a non-government organisation, charged with regulating or overseeing the activities of a specific industry. It is generally subject to limited government oversight. An SRO sets and enforces rules and standards governing its members. It can be a suitable and less restrictive alternative to government regulation.
It is necessary to look at how the CBFC’s role is fulfilled in other countries. In the United Kingdom, the British Board of Film Classification (‘BBFC’) serves as the certification body, providing age ratings for various films. Local Municipal Authorities generally decide whether to allow a film to be screened based on this certification.
In Mills v London City Council[1] (subsequently upheld in R. v. Greater London Council Ex. p. Blackburn, it was held that a municipal authority could condition its licensing on the exhibitor complying with the BBFC certification. The BBFC is a non-governmental organisation, with some power delegated to it by the Government. For example, the Video Recordings Act 2010 mandates videos for sale in the UK to be certified by the BBFC Though the BBFC may not fully meet the definition of an SRO, it closely resembles one in its functioning.
In the United States, at present, the Motion Picture Association (‘MPA’) administers a voluntary age rating system that is not enforced by law and films can be exhibited without a rating. Previously, the Motion Picture Production Code, commonly known as the Hays’ Code was adopted by the MPA as a means of self-regulation. The code was adopted by the film industry largely in an attempt to prevent government censorship. After the establishment of the Production Code Administration (PCA) in 1934, the code was strictly enforced, and until the 1960s, almost all major studios adhered to it.
These two examples demonstrate that regulation by a non-governmental entity is both possible and practical. One may argue that an SRO, or any other non-governmental organisation lacks a sufficient enforcement mechanism to be effective. However, the BBFC has been conferred with adequate mechanisms for enforcement by case law and statute. The same can be done with regard to the proposed SRO.
SROs are also by no means unprecedented in India. There are 11 registered under the Ministry of Information and Broadcasting alone. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 rely heavily upon self-regulation. The Rules create a three-tier regulatory structure. Self-regulation by an Over-the-top (‘OTT’) platform and self-regulation by an SRO form the first two tiers.
Two SROs, the Digital Media Content Regulatory Council and the Digital Publisher Content Grievances Council have already been formed, to comply with the Rules. OTT platforms offer a less restrictive outlet for creativity with more diverse content. They are also the closest parallels to conventional cinema, further strengthening the argument for SROs in the Indian film industry.
Recommendations for Practical Implementations
The SRO should establish separate branches for different film industries. A specific film industry, based in a particular geographical area, for example, Bollywood would have a branch certification board composed of persons intimately involved with the local film industry. Separate branches, comprising local members, would be able to deal with sensitive regional issues more effectively. Due to a reduced workload, its functioning would also be efficient.
As members of each branch certification board are involved in the local film industry, they would have the specialised knowledge and skills to evaluate films for certification. The possibility of political bias and subjectivity remains. However, a certification body consisting of members chosen by the film industry, from among themselves is less likely to pander to the wishes of the ruling government, than one comprising entirely of government nominees. This is strengthened by the fact that they would not receive any remuneration or privileges from the government. As members of the film industry, they would also be more inclined to support creative freedom, suggesting modifications only when necessary.
Some form of limited government oversight is still required. It is recommended that the central government take appropriate steps to ensure the SRO’s effective functioning. For example, the government may nominate the chairperson of each branch certification board or insist on annual inspections. This could act as a balancing factor against any possibility of an overly lenient approach.
While the Shyam Benegal Committee recommended that the CBFC should merely be a certification body, without powers to make changes to films, this recommendation should only be partially adopted. The SRO should primarily be a certification body. However, prohibitory measures may be warranted in certain cases. The situations in which such prohibitions may be placed should be as limited as possible and be stated clearly: The SRO can frame guidelines based on the existing CBFC guidelines. Inspiration may also be drawn from the Motion Picture Producers and Distributors of America’s “Don’ts” and “Be Carefuls” list released in 1927, which would later form the basis of the Hays Code, While the Hay’s Code arguably did more harm than good by stifling creativity, the structure that the list follows is quite good, and may be emulated.
As can be inferred, “Don’ts” were issues that were completely prohibited from being depicted while “Be Carefuls” were issues that had to be handled with caution. Similarly, the SRO can classify certain issues as clearly impermissible, that is, the “Don’ts” category. To establish whether a certain item should fall in the “Don’ts” category, a two-pronged approach is suggested.
First, the issue depicted should be illegal, however, prohibiting the depiction of any illegal activity would stifle filmmakers' creativity. Therefore, only patently insensitive, harmful or denigratory activities like child pornography or actual footage of sexual assault, should be prohibited. In case of a dramatic enactment of rape, a graphic version may be restricted, but a limited version should be allowed subject to age ratings.
Social evils which are not per se illegal, such as the glamourisation of drinking, should not be prohibited. Instead, they may be placed under "Be Carefuls". This “Be Carefuls” category should comprise non-binding guidelines that filmmakers may bypass if they accept higher age ratings.
The FCAT should also be revived, to hear appeals against the decisions of the SRO. It is recommended that FCAT members should be appointed by the government after consultation with the SROs, with each branch nominating one member from their respective film industry to hear appeals thus allowing major stakeholders to have a say in the FCAT’s composition.
Conclusion
In conclusion, the current regime of film certification is more akin to censorship. In order to have a fairer and more objective regulatory and certification mechanism, it is recommended that an SRO be established to perform the functions of the CBFC. From the cases of the U.S. and the U.K., it is clear that the process of film certification can be successfully carried out by a non-government organisation, and the same could be emulated in India An SRO would be the best chance at ensuring a less restrictive film industry, encouraging greater creativity and diverse perspectives. As mentioned previously, the government may retain some limited control, balancing the need for government oversight and independent functioning. While the SRO should primarily be a certification body, prohibitive measures may be necessary in certain limited circumstances. It is also recommended that the FCAT be re-established, with the SRO having a greater say in its composition.
[1] [1925] 1 K.B. 213 (D.C).
This article has been authored by Hrishav Dasgupta, a student at The National University of Advanced Legal Studies (NUALS), Kochi. It is a part of RSRR’s Rolling Blog Series.