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Why Bollywood’s New Love For Abolished Film Certification Appeal Tribunal Is Surprising

 


The government’s decision last week to abolish the Film Certification Appeals Tribunal drew lots of Bollywood reviews as good as liberal sections media, who portrayed the tribunal as a defender of free speech and artistic freedom.

The tribunal was established under the Cinematograph Act, 1952, to hear appeals against the Central Film Certification Board (or CBFC, better known as the Censor Board). It was scheduled for demolition under the Courts Reform Bill, 2021 this was presented to Parliament in the last session. He met an untimely death after the government decided to take down the prescription road.

Filmmakers seeking certification for their works will now have to go to the High Courts if they have any grievances with the CBFC.

While the government can be blamed for taking the ordinance route and failing to consult with stakeholders before making its decision to abolish FCAT, Bollywood’s newfound love for the tribunal is surprising. It is not an organization known for its intellectual rigor or its adherence to the basic principles of free speech. Bollywoods fear that the abolition of the FCAT could lead to delays in disputes over certification by the CBFC, which is one of the most arbitrary bodies in this country.

Big advantage

There appear to be no academic studies that measure the time taken by the FCAT versus the time taken by the high courts, but it is possible that the high courts, with their heavy burden of work, take a little longer to hear such matters. It should be remembered, however, that the FCAT workload will be spread over more than a few high courts and so the delays may not be as severe as some had anticipated.

However, the big advantage of what the High Courts hear of such appeals at first instance is the fact that the High Courts are much more independent than the FCAT, which in the past had active members of political parties, sitting on the tribunal in as members. For example, not so long ago, FCAT had Shazia Ilmi as one of its members, despite his then active membership of the Bharatiya Janata party. Likewise, Poonam Dhillon who has been with the BJP since 2004, was also appointed to FCAT.

Aside from the issue of greater judicial independence, high courts also tend to be much more rigorous in their legal reasoning, while examining issues of freedom of expression and artistic freedom, than the FCAT, which is most time as arbitrary as the CBFC.

The “Kaalakaandi” trailer.

Most certification disputes before the FCAT can be classified into three categories. The first and most contentious category is the use of profanity in any language depending on the certification sought by the filmmaker. The second category concerns everything related to sex, sexuality or sex scenes. The third category concerns political discourse, whether in commercial cinema or in political documentaries.

The first two categories of disputes are decided fairly randomly by the FCAT. Take for example her decision in a case involving the film Kalaakaandi, where he ordered the replacement of the gadhe ka lund phase by gadhe ka ling. However, the use of the word bhenchod (motherfucker sister) was allowed, because in the esteemed opinion of the courts, it was common language among gangsters. However, the use of the word madarchod (motherfucker) was not allowed in the same film.

While dealing with a sex scene in the same film, the FCAT had this to say: We find that in the scene at 12:53 am, the woman is seen astride the man. This scene must be reduced by 50% with another direction that it does not represent the act of coitus in progress.

As usual with the FCAT, the order does not provide any reason why a filmmaker cannot show a couple faking a sex scene in a particular sex position. This is just one example of FCAT’s bizarre reasoning. There are several other examples of poorly motivated FCAT orders that can be viewed at the website of the Ministry of Information and Broadcasting. A common problem in these FCAT orders is the lack of reference to well-established principles of free speech or even basic legal reasoning.

Political speech

In the third category dealing with political discourse in films and documentaries, the high courts are significantly more liberal than the FCAT. The most famous example of this category is the Udta Punjab cases where the CBFC and FCAT ordered a series of ridiculous cuts, including the removal of the Punjab name from the title. The orders came against the backdrop of high-stakes state elections in Punjab, where drug trafficking and use was a major bone of contention. Given that the film focused entirely on the drug problem in Punjab, it was hardly surprising that it had become a political hot potato.

In this case, an appeal to the Bombay High Court was successful. in a long judgment overturn most cuts. There are other examples apart from Udta Punjab in this category. Two of those cases involved documentaries by award-winning filmmakers like Anand Patwardhan and Pankaj Butalia. In the case of Patwardhans documentary on War and peace, the FCAT ordered the removal of slogans and a speech by a Dalit leader criticizing the explosion of nuclear bombs on Buddha Jayanti as well as the addition of a warning on the Tehelka bands being submitted to a judicial commission.

In one well-reasoned order, the Bombay High Court applied the tried and tested principles and precedents of freedom of expression to overturn the FCAT order. Likewise, the Bhutalias’ documentary on Kashmir, entitled Loss textures was faced with arbitrary cuts as well as a request to add a warning from FCAT. It took an appeal to the Delhi High Court for all cuts as well as a request for a warning to be rescinded in a well-reasoned judgment which has been confirmed On appeal.

Pankaj Butalia’s “Textures of Loss” trailer.

And then there is the case of Charlie and the Coca-Cola Company, which was a documentary on alleged pollution by Coca-Cola, the Confirmed FCAT the CBFC ordered that the documentary film’s certification be refused on the grounds that it was defamatory of Coca-Cola. In fact, this meant that the producer could not publicly exhibit the film. Once again, it was the Delhi High Court that intervened to quash the FCAT and clear the bridges for the public exhibition of the film.

Apart from the fact that the High Courts generally reason their orders much better than the FCAT in correctly interpreting legal principles relating to freedom of expression, there is also the fact that the High Courts have a much more diverse range of judges to hear. these cases compared to the FCAT which has had the same members for years together. In other words, if the FCAT has Conservative members appointed for a five-year term, the industry is doomed.

High courts, however, are much more diverse due to the large number of judges, and given the file system, different judges will hear these cases at different times in the same court. A diversity of judicial opinions, in particular on issues related to freedom of expression and freedom of creation, should be welcome because this is how case law is enriched and developed.

While Bollywood may face short-term difficulties with the abolition of FCAT, they should be assured that the transfer of power to the high courts will likely free them to take more creative liberties with their art in the long term.

The writer is a lawyer

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