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This article is written by Pranav Shroff.

Introduction

Indian and foreign filmmakers require various kinds of permissions and authorizations from the Indian Government in order to shoot films in various parts of the country based on the requirement of the script. A structured body like the Film Facilitation Office (FFO) has been set up by the Ministry of Information and Broadcasting in the National Film Development Corporation with a view to promote and facilitate film shootings in India. It acts as single window facilitation and clearance mechanism that eases filming in India.

The various kinds of permissions that are generally required are as follows:

Location related permissions: Based on the location of the shooting permissions from various authorities such as municipal authorities, police, authorized bodies are required for shooting in national parks, archaeological sites, public places, monuments, etc. Shooting films in sensitive areas of any state requires specific approvals. The permission of the Ministry of Home Affairs is required for shooting in Jammu & Kashmir or certain north eastern parts of India. Generally speaking the idea behind such approvals is to ensure that the concerned areas where shooting is sought to be done is not shown in a negative light thereby hurting sentiments of the people. These permissions can be processed by the Film Facilitation Office as a part of the application given by the filmmakers.

Filming with Governmental Authorities: In the event that the film requires to shoot with a Government Department or utilize their resources such as vehicles, uniforms etc. then special permits would also be required from the respective Government Departments. 

Filming Animals/ Birds: If the script of the film requires filming with animals/ birds or filming of animals/birds then the filmmaker would require permission from Animal Welfare Board of India (AWBI). The AWBI may have bans/ restrictions to do shooting with or shooting of certain kinds of animals or birds.

Using drones to shoot: Using drones for photography and/or filming technology without appropriate permissions may lead to violations of privacy laws. Usage of drones has been regulated by the Civil Aviation Requirements issued by Directorate General of Civil Aviation. India recently introduced a policy for the importation and use of drones. Filmmakers need to ensure that they are adhering to the regulatory requirements of using drones in India for filming purposes so that they are not in violation of any law/ regulation which may be in force for the time being. 

Immigration and importing: Foreign filmmakers need to ensure that they have appropriate visas for all of their personnel who will be shooting in India and relevant customs duties would have to be paid for the import of any kind of equipment that filmmakers may require for shooting their films in India. The FFO would be of great assistance for this process as well.

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Offences and violations to steer clear from by filmmakers while making and exhibiting films in India

Under the present Indian law context, the following need to be heeded by filmmakers so that they are not on the wrong side of the law:

Defamation: It is an offence under section 499 of the Indian Penal Code 1860. The contents of this offence include words spoken or written which are of such nature that they can harm the reputation of a person and that such words do not per se have any legal justification or excuse. The words are defamatory in nature, in other words, it would mean that when these words are used they expose another person to certain unhealthy and unappetizing emotions such as ridicule, hatred or obloquy thereby causing him to be avoided by other people in the society which may also have the likelihood of injuring his calling, profession or brand name in his business.

Obscenity: Morality, Obscenity and Censorship are precisely codified under the Indian penal code 1860 as offences under section 292-294. Basically as per the provisions of these sections collectively speaking the sale, letting to hire, distribution, public exhibition, circulation, import, export and advertisement of obscene are prohibited acts and are punishable with fine and imprisonment. The Indecent Representation of Women (Prohibition) Act 1986 prohibits the Indecent representation of women by making all acts as offences which portray women in an indecent manner. These acts are punishable with imprisonment and fine and they mainly include the written and pictorial Section 67 of the Information Technology Act 2000 makes the transmission and publication of obscene and corrupt content in electronic form a punishable offence. The Cable Television Networks (Regulation) Act 1995 is the law for prohibiting obscene content in programs being telecasted by channel on the television.

Hate Speech: This has been classified as an offence under the Indian Penal Code 1860. Section 153-A penalizes acts which promote enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and also doing acts which are prejudicial to maintenance of harmony. Section 295 A penalizes deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Section 505(2) penalizes making statements by any person which creates or promotes enmity, hatred or ill will between different classes of people in the society. Hence to summarize and put it in simpler words hate speech is nothing but a speech made by one or more persons against another person or group of persons which is of such nature that it not only disturbs or hurts the sentiments of the person against whom it is made but it in general creates and causes a sense of hatred against such group of persons thereby causing such person or group of persons to be looked down upon by other members of the society.

Sedition: Sedition is an offence under section 124 A of the Indian Penal Code 1860. It is quite similar to defamation and hate speech but however the prima facie difference to note here is that sedition refers to incitement of hatred against the Government of India in particular, whereas the other two offences talk about incitement of hatred among the general public and members of the society.

Anti Competitive Agreement: It is a type of agreement entered into between filmmakers and movie theatres. It is basically an arrangement entered into by virtue of an agreement wherein a filmmaker pre books all the screens of a multiplex theatre or a single screen theatre thereby disabling or reducing the exhibition of other films to such an extent they become commercially unsuccessful despite being good films such type of agreement is prohibited under the Competition Act 2002. A classic case for such a violation would be the case of Ajay Devgn dragging Yash Raj Films to the Competition Appellate Tribunal for challenging a tie in arrangement with single screen theatres thereby restricting his film to multiplexes.

Broad legal principles governing the Censorship of Films

The public exhibition of films is governed by the Cinematograph Act 1952 and the Cinematograph Rules 1983. There is a statutory body called the Central Board of Film Certification (CBFC). The broadcast of films on television including film songs, promos, music videos and music albums is governed by the Program and Advertising Code which is prescribed under the Cable Television Network Rules 1994.

The issue of censorship of films came up before the Supreme Court in 1969 in the case of K.A Abbas vs Union of India.[i] Over the years the Supreme Court and High Courts of various states have dealt with issues relating to censorship of films in India. The Delhi High Court in March 2011 summarized and explained the broad legal principles governing censorship in the case of Srishti School of Art, Design and Technology vs. Chairman, CBFC. [ii] They are as follows:

  • Obscenity must be judged from standards of reasonable, strong-minded, firm and courageous men.[iii]
  • If challenged, the burden is on the petitioner (Government) to prove obscenity.[iv]
  • The film has to be viewed as a whole before adjudging whether a particular scene or visual offends any of the guidelines.[v]
  • To determine whether a film endangers public order, the film must have proximate and direct nexus to endangering public order.[vi]
  • The courts do not ordinarily interfere with the decision of CBFC regarding certification unless found completely unreasonable.[vii]

Other general considerations

As revenue is generated and there is a flow of funds from one country to another there are tax implications and considerations as well which should form as an essential part of the film budget. Further, there are exchange control regulations that regulate and manage the way in which the funds are transferred across international borders. In order to attract foreign filmmakers, the Indian Government is working on granting tax rebates and subsidies.[viii]

Additionally, there are a few fiscal benefits which foreign and Indian filmmakers enjoy based on co-production treaties entered into by countries such as the United Kingdom, Spain, Italy, France, Korea, China, Thailand, Malta and New Zealand. The benefits vary depending upon the treaty that may be in force between India and the respective foreign country. The benefits include exemptions in import duties and taxes, permits to stay in the country for the entire filmmaking process until the film is released and various other kinds of fiscal benefits. The purpose of giving such benefits is mainly to attract foreign filmmakers to come to India and make films thereby promoting tourism, hospitality and economic development in the country. 

While there are censorship regulations at present governing the exhibition of content in films and the content on Television but there isn’t any law or regulation governing the censorship of content available on the online streaming platforms such as Netflix, Amazon Prime Video etc. Among the various options to regulate the content on these online platforms some of the options that the Government is exploring includes a self-regulation code which will govern the content that is put on these platforms without government interference or a government monitored code that may require prior approval of the government before placing any content on the platform.[ix] The purpose of regulation of the content on these platforms is also to ensure that the content uploaded is not in violation of any law or regulation or also that it does not disturb any sentiments of any class of persons in the society. While certain laws such as the Indian Penal Code 1860 deals with the distribution of obscene content or crimes such as sedition and these may apply to the internet thereby may be applicable to the popular online streaming platforms such as Netflix or Amazon Prime Video as well but censorship laws under the Cinematograph Act 1952 may not extend to the Internet and thereby may not be applicable to these online streaming platforms.       

To summarize and conclude Film productions from being an unorganized and unregulated sector has grown massively over the last couple of decades after getting regulated by various Government authorities thereby tapping into its real potential. While filming in a foreign country may seem a bit taxing, however filming in India has now become simpler and more attractive for foreign filmmakers and foreign film production houses with the introduction of the FFO, laws and regulations governing every aspect of film making from intellectual property rights till cinematography and various potential & existing fiscal benefits.

References

[i] 1970 (2) SCC 780

[ii] W.P. (C) 6806 of 2010

[iii] Observations of Justice Vivian Bose in Bhagwati Charan Shukla vs. Provincial Government, AIR 1947 Nag 1. Approved by Supreme Court in Ramesh v. Union of India, AIR 1988 SC 775, and cited with approval by Delhi High Court in Shrishti School of Art, Design and Technology vs. Chairman, CBFC W.P. (C) 6806 of 2010

[iv] Life Insurance Corporation of India vs. Prof. Manubhai D. Shah, (1992) 3 SCC 637

[v] . Director General, Directorate General of Doordarshan vs. Anand Patwardhan, AIR 2006 SC 3346

[vi] Rangarajan vs. P. Jagjivan Ram, 1989 SCC (2) 574

[vii] Bobby Art International vs. Om Pal Singh Hoon, 1996 4 SCC 1

[viii] https://www.business-standard.com/article/news-ians/india-poised-to-create-film-production-incentives-119051600505_1.htmlhttps:/www.business-standard.com/article/news-ians/india-poised-to-create-film-production-incentives-119051600505_1.html

[ix] https://www.livemint.com/companies/news/netflix-and-amazon-face-censorship-threat-in-india-report-11571367498089.html


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