The Cinematograph Act is Coming Full Circle

In 1968, Khwaja Ahmad Abbas, an Indian film director and screenwriter made a documentary film titled “Char Shaher Ek Kahani”, aimed at exposing the disparity in the lives of the haves and have-nots in India’s metropolises, including highlighting the plight of commercial sex workers in Mumbai. When he sought certification for this film for unrestricted viewership, the Central Board of Film Certification (CBFC) certified it only for adult viewing. He appealed to the Central Government, but they would agree to give him a “U” certificate only on the condition that he delete certain scenes, particularly those shot in the red-light district. He chose to challenge this decision in a writ petition before the Supreme Court. At the Supreme Court hearing, the then Attorney General informed the court that the Government no longer sought the cuts it had previously insisted on. Mr Abbas nonetheless pursued his petition by amending it to challenge the constitutionality of the very concept of pre-censorship, apart from specific provisions of the Cinematograph Act, 19521 (the “Act”), as being violative of the freedom of speech and expression. More precisely, he questioned Section 62, which was the provision under which the Central Government could revise decisions of the CBFC, and the absence of an appeal against the decision of the CBFC to a court or an independent tribunal.

The Supreme Court, in K.A. Abbas v. Union of India3, repelled all but one of Mr Abbas’s contentions, namely, that the Central Government could not be the final arbiter on the certification or otherwise of a film. The then Solicitor General in fact conceded to this position, and the Supreme Court speaking through Chief Justice Hidayatullah noted:

… We express our satisfaction that the Central Government will cease to perform curial functions through one of its secretaries in this sensitive field involving the fundamental right of speech and expression. Experts sitting as a tribunal and deciding matters quasi-judicially inspire more confidence than a secretary and therefore it is better that the appeal should lie to a court or tribunal.4

True to its word, the Government amended the Act with effect from 1983 by, amongst other things, introducing a provision for an appeal and creating the Film Certification Appellate Tribunal (FCAT). The Tribunal was to be headed by a retired High Court Judge or an equally qualified person. However, the revisional power of the Central Government under Section 6 was retained, permitting it to revise the decision on certification already taken or pending before the CBFC. Additionally, this amendment, in fact, widened the Central Government’s revisional power to include those cases whose appeals were pending before the FCAT, or had been decided by it.

This amended Section 6 was challenged before the Karnataka High Court (High Court) in K.M. Shankarappa v. Union of India5. The High Court unequivocally held that the revisional power of the Central Government exercised against a decision rendered either by the CBFC or by the FCAT, would be equally unconstitutional. This, because it would amount to the executive sitting in judgment over a quasi-judicial body, thus breaching the separation of powers under the Constitution, which is a part of its basic structure. It observed:

… Therefore, we are of the view thatSection 6(1)of the Act insofar it enables the Central Government to exercise the power of revision against the decisions of the Board of Film Certification and also the Appellate Tribunal is violative of the basic structures (sic) of the Constitution. The decision of the Board of Film Certification refusing to grant a certificate; or granting only an “A” Certificate; or granting only a “S” Certificate; or granting only a “UA” Certificate; or directing the applicant to carry out any excisions or modifications, is appealable under Section 5-C of the Act6. The appeal lies to the Appellate Tribunal. Therefore, the power of revision conferred upon the Central Government against the order of the Board of Film Certification falling under Section 5-C of the Act interferes with the exercise of judicial power.

This reasoning was echoed by the SC in the appeal to it, in Union of India v. K.M. Shankarappa7, while observing that to permit this “would amount to interference with the exercise of judicial functions by a quasi-judicial Board”8 i.e., the CBFC. It reiterated that this was a travesty of the rule of law, one of the basic features of the Constitution. Clearly, what the Supreme Court and the High Court held to be impermissible was the scrutiny by the executive of decisions not only of the FCAT, but also those of the CBFC.

The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 20219, promulgated on 44-2021, abolished the FCAT and designated the High Court in its place, to hear appeals from the CBFC. This Ordinance was eventually passed by Parliament and thus enacted as the Tribunals Reforms Act, 202110 (the “2021 Act”) on 13-8-2021. In the meantime, in June this year, the Ministry of Information and Broadcasting had sought public comments on a further proposed amendment which broadens the revisional power in Sections 6 (by introducing a proviso) to allow the Central Government to remand a film for “re-examination” to the CBFC, based on the broad heads enumerated in Art. 19(2) of the Constitution11 to justify reasonable restrictions on the freedom of speech and expression.

The film industry today, is bracing for the practical impact of these amendments on filmmakers’ freedom to produce and release critical content. The anxiety has hinged, as it always does, on whether the amendments will, in fact, have the chilling effect that critics of the law apprehend.

A cursory glance at this Bill reveals that it is avowedly a validating amendment enacted to overcome the legal position obtaining from the judgments of the High Court and Supreme Court in Shankarappa12. That this validating amendment is of significance, because, to be tenable, it must satisfy the well-settled tests of legislative competence, constitutionality (including consistency with fundamental rights) and above all, that of the legislature having removed the defect which the court had found in the previous law.13

The 2021 Bill seeks to confer revisional powers on the Central Government, to the extent that it can direct a “re-examination” of a film even after it has been certified for public exhibition by the CBFC. This has been done to get over the law laid down in the Shankarappa judgments14 (1990 and 2001) which held that once a film is certified, the power of revision would no longer be exercisable by the Government in respect of such a film. The basis of the judgments of the Supreme Court and the High Court15, for censuring such revisional powers was that to allow it would amount to review of a decision of a quasi-judicial body by the executive.

Succinctly, the legislature has sought to nullify the law obtaining from the Shankarappa judgments16 in two steps: (i) remove the FCAT by way of the 2021 Act; and (ii) restore post-certification revisional powers to the Central Government, through the proposed proviso to Section 6(1) of the Act.

This appears to be premised on the legislature’s interpretation that the ratio of the Shankarappa judgments17 is restricted only to holding that a decision of the FCAT alone is unamenable to review by the Central Government. By abolishing the FCAT, the legislature appears to have assumed that the exercise of revisional powers by the Central Government, post film certification by the CBFC, would no longer amount to an impermissible review by the executive.

The tenability of this two-step validating amendment is rather doubtful since: firstly, it ignores that the Shankarappa judgments18 hold that even decisions of the CBFC cannot be the subject-matter of revision by the Central Government; secondly, it fails to account for the legislative history and scheme of the Cinematograph Act (insofar as certification and the review process is concerned), which is actually an implementation of the undertaking given by the Government to the Supreme Court in K.A. Abbas19.

Thus, to the extent that the 2021 Act and Bill overlook an important aspect of the holding in the Shankarappa judgments20, and completely ignore what was held in K.A. Abbas21, it quite clearly fails to remove the basis of these judgments. Consequently, it falls foul of one of the cardinal tests for a validating amendment to be legally tenable i.e., curing the defect noticed by the Court in the previous law.

Furthermore, it is of utmost significance that the basis of the Shankarappa judgments22 is that a scrutiny by the executive of a decision of a quasi-judicial body i.e., the CBFC, would be antithetical to the doctrine of separation of powers and thus the rule of law. In this context, the Supreme Court has recently, in Madras Bar Assn. v. Union of India23, held that:

… a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality under Article 14 of the Constitution24. Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law.

It is thus apparent that any amendment seeking to subject the decision of a quasi-judicial body to executive whim would be in violation of the basic structure of the Constitution, and to the extent the 2021 Act and Bill seek to create such a position, they are unsustainable.

More importantly, it is arguable that a defect which has been held to impinge on the basic structure itself is incurable by validation and must be eschewed only by its deletion. In other words, Parliament does not possess the power to validate anything that violates the basic structure, since it is entrenched and inviolable.

The scheme of the Cinematograph Act, post the 2021 Act and the amendments proposed by the 2021 Bill, seeks to create a scenario where although those aggrieved by a CBFC decision would have a statutory right to appeal to the High Court, it would be the Central Government’s exclusive prerogative to parallelly direct a reconsideration of a certification already granted/refused by the CBFC. The revisional power contemplated is unbridled, especially since the stage at which it can be exercised has not been specified. This implies that it could effectively be invoked even when an appeal is pending before the High Court.

The provision for an appeal to the High Court creates an illusion that necessary safeguards against executive whim are in place, when in fact, the parallel revisional power has the ability to negate such safeguards. In other words, the appeal provision, is a decoy in a manner of speaking, to detract from the reintroduction of the revisional provision, twice censured by the Supreme Court i.e., in K.A. Abbas25 and Shankarappa26.

It is plainly obvious that the proposed scheme once again purports to subject decisions regarding film certification to executive whim. Thus, the breach of the separation of powers and in turn the rule of law, which was the basis of both the Supreme Court decisions27, persists.

The precise apprehension with regard to such a statutory scheme is already playing out in reality, as news reports suggest that last month, a movie titled “Aadhaar” which had already been certified by the CBFC, has been subsequently subjected to 28 cuts at the instance of the UIDAI, a part of the Central Government28.

Above all, these amendments have effectively turned the clock back to how the law stood before the decision in K.A. Abbas29, where Chief Justice Hidayatullah had, on the assurance of the then Solicitor General, expressed satisfaction on behalf of the court that “the Central Government will cease to perform curial functions through one of its secretaries in this sensitive field involving the fundamental right of speech and expression”. Alas, that it seems is not to be.

* The authors are practicing lawyers at the Supreme Court.

1 http://www.scconline.com/DocumentLink/cU28r6a4.

2 http://www.scconline.com/DocumentLink/Z1H2M060.

3 (1970) 2 SCC 780.

4 (1970) 2 SCC 780, 785.

5 1990 SCC OnLine Kar 149.

6 http://www.scconline.com/DocumentLink/xQJjVsQu.

7 (2001) 1 SCC 582.

8 (2001) 1 SCC 582, 585.

9 http://www.scconline.com/DocumentLink/f98Y656o.

10 http://www.scconline.com/DocumentLink/PEvv9yWB.

11 http://www.scconline.com/DocumentLink/74roly04.