This article is written by Saswata Tewari from the University of Petroleum and Energy Studies Dehradun. This article talks about all the important statutes and laws relating to Indian Cinematography.
Watching movies has become a very common thing in the 21st century and movies play an important part in acknowledging people with the concerning issues in our society, depicting human history on the big screen and sometimes showing how the humans in the future may look like. But the legal aspects regarding filmmaking in India has a deeper and wider concept to it. There are various statutes, laws, and statutory bodies governing different aspects of Indian filmmaking and many of these laws governing Indian movies are old and have been looked upon for a long time.
Constitutional rights and restrictions
The Constitution of India guarantees every Indian citizen the right to exhibit films under Article 19(1)(a). But the right to freedom of speech and expression is subjected to certain limitations since publicly broadcasting films can possibly intrude and provoke feelings of individuals of the society. Article 19(2) states down the exceptions to the right of speech and expression and these exceptions are exhaustive and are firmly construed. The provisions given under Article 19(2) Actually guides the arena of censorship in Indian films putting stress on the values and standards of our society. Union Legislature has the authority to make laws on the censorship of Indian films and this authority is guaranteed by Entry 60 under Schedule VII of the Indian Constitution. The state can also regulate the laws on the matter of censorship in relation to the provisions made by the central legislation.
Indian Cinematograph Act
The first Indian cinematograph Act was enacted in 1920 which had established censorship boards in cities like Madras, Calcutta, Bombay, Lahore and Rangoon. The main purpose of this Act was to keep in check the appropriateness of the films which are to be released in the Indian subcontinent. The district magistrate and in some cities, the commissioners had the authority to appoint people to inspect and check films that are to be released for the common Indian public.
The Act of 1918 was repealed by the Indian Cinematograph Act 1952 (the Act). The new Indian Cinematograph Act had laid down the rules for Indian cinema that are followed up to this day. The Act makes sure that the films are following the rules laid down and it established the statutory body Central Board of Film Certification, whose task was to control the public execution of films under the laws of the Indian Cinematograph Act 1952.
The Indian cinematograph Act lays down the framework of censorship in India. Government officials are appointed under the laws given by cinematograph Act and it includes the chairperson at the top, followed by the board members and then the advisory panels and these government appointees make cuts and deny certificates to films that do not comply with the guidelines given in the Act. Section 2 of the Act provides the legal definition of every word with regard to legislation in censorship. Section 5(B) of the Act states the provisions for restricting films and these provisions are made in accordance with the limitations provided under Article 19.
Central Board of Film Certification
The main objective of the Central Board of Film Certification (CBFC) is to issue certifications to filmmakers for public exhibition of the films and make sure that these films promote a healthy public entertainment to the common public.
The CBFC is established by section 3 of the Act which states that the government of India can constitute a board of film certification to watch the films that are to be released and approve them for watching by the common public.
The CBFC consists of the following members; Chairman and the non-official members who are selected by the Central Government. The headquarters of CBFC is situated in Mumbai, Maharashtra, and has 9 regional offices in:
- New Delhi
The regional offices are helped by the Advisory Panels and the panel members are also appointed by the Central Government for 2 years. CBFC has its two-tier jury system comprising the Examining Committee and the Revising Committee.
Section 5-A of the Act provides for the certification of Indian films and forgetting the certification, an application has to be given for the CBFC to examine the movie for public exhibition. The CBFC issues four types of certifications mainly. They are:
- Parental Guidance
- Adults Only
- Restricted to Special Class of Persons
After the films are thoroughly inspected by the CBFC, the films can be sanctioned for unrestricted public exhibition or public exhibition restricted to adults. The board can also suggest modifications to be made in the films before approving it for the common public and also at times, the board can decide to completely refuse to sanction the film for public execution.
K.A Abbas v. Union of India was one of the first cases where the matter of censorship in Indian films had arisen. In the case, a petition was filed in the Supreme Court because a film was refused to be given a ‘U’ certification. The main issue here was the pre-censorship of cinematography subject to the constitutional fundamental rights guaranteed under freedom of speech and expression. The court held that the issue of censorship of films which contains the clause of pre-censorship is valid under Article 19(2) of the Constitution of India. A similar circumstance was encountered in the case of S. Rangarajan v. P. Jagjivan Ram, where the film was granted a ‘U’ certification but was revoked by the Madras High Court and the film was banned from public exhibition. Protests were held against the film as the topic of reservation policy was a major topic the film dealt with. The Supreme Court held that it is not reasonable to ban the film on the fear of public protests as these public demonstrations are beyond the limitations placed under Article 19(2) of the Constitution of India. Restricting the film on the mere threat of public protests shall not be entertained as it does not restrict freedom of speech and expression since it is the responsibility of the state to safeguard the said fundamental rights in every situation.
After the case of K.A Abbas, came the case of Srishti School of Art, Design, and Technology vs. Chairman, CBFC, filed in the High Court of Delhi. This case defined and outlined the broad legal guidelines administering the censorship in Indian films. These guidelines were as follows:
- The film has to be seen as a whole before judging whether a specific scene of the film breaches any of the guidelines provided by law.
- Scenes of obscenity have to be judged from the standards of reasonable, strong-mindedness, firm, and courageous men.
- The burden is placed on the petitioner to prove that there is a clear case of obscenity in the film in cases where the petitioner is challenged.
- To check if a film endangers the public order, it has to be proved that the film has a proximate and a direct connection to endangering public order.
- No interference is made by the courts on decisions of CBFC regarding the certification of films unless the decisions are found to be completely unreasonable.
Another case of censorship was seen in the film ‘Udta Punjab’. The film was based on the theme of drug abuse in the state of Punjab. The producers of the movie applied for ‘A’ certification in the CBFC but the reviewing committee had asked the producers of Udta Punjab to make thirteen cuts in the movie to make it suitable for public exhibition. However, the producers of the movie filed a writ petition in Bombay High Court alleging on the fact that the decision of the CBFC breaches the right to Freedom of Speech and Expression guaranteed by the Indian Constitution. After a thorough analysis of the cuts suggested by the CBFC, the Court allowed only the scene to be cut where the protagonist was seen urinating in public. The Court also stated that all the other cuts suggested by CBFC were not necessary is subject to the theme of the movie and opposing the suggestion of CBFC, the Court felt that it was necessary to cut out the abusive words, slangs, scenes where individuals were taking drugs, use of the name of the state and place, referring to politicians and elections, etc.
Indian Copyright Act and Bollywood
The Indian Copyright Act 1957 regulates the issue of copyright in Indian films and protects the interest of filmmakers, scriptwriters, lyricists, music composers from getting exploited. The Indian Copyright Act is heavily influenced by the Copyright Act 1956 and stands to safeguard the original underlying works and literature. The range of copying original work and the term ‘copyright’ has been defined in Section 14 of the Indian Copyright Act 1957.
However, the term “copy” has not been defined in the Copyright Act and Indian courts seldom narrowly interpret the term accordingly and it has been open for discussion ever since. Such a debate was seen in the case of R.G Anand v. Delux Films. In this case, the Supreme Court gave a wider interpretation of the term ‘copy’ and laid down certain guidelines to determine the cases of copyright infringement. These guidelines are:
- There can be no instances of copyright in an idea, subject matter, themes, plots, or historical legendary fActs, and breach of copyright laws in these cases is restricted to the form, manner and arrangement, and expression of the idea of the author of the copyrighted work.
- In instances where the same idea is being used differently, it is said that the origin of the idea being common, similarities are bound to crop up in the said case.
However, the ultimate test is to check the influence of the copied work on the third party after the party has watched\read both the works. Copyright infringement is an Act of piracy and hence it must be proved by clear and convincing evidence provided that it has undergone all the tests given by the case law R.G Anand.
In the case of 20th Century Fox Film Corporation v. Sohail Maklai Entertainment, it was alleged by the Hollywood studio that the Indian producer had unlawfully copied and remade its film released in 2002 titled “Phone Booth” and the case was filed under Section 2(m)(ii) of the Indian Copyright Act 1957. The court held that even if a small part is substantially similar to the copyrighted work, it will fall under the radar of copyright infringement and it was ruled that there was a copyright infringement in this case. Later on, the case was resolved amicably by Sohail Maklai by giving 1.25 crore rupees to Fox Studios.
Another case of copyright infringement was filed by the band Brobax Corp against the film ‘Agent Vinod’. In this case, the band claimed that the song from the film titled ‘Pyaar ki pungi’ is similar to one of their songs, named ‘Soosan Khanam’. It was held by Judge Vajifdar that there is no legal document that says that rights of the songs have been given to the Brobax Corp and henceforth, the band has no locus standi to file the case in the first place.
However, there is an exception to the rule of copyright in Section 52 of the Indian Copyright Act 1957 which talks about the concept of fair dealing. The idea of fair dealing is that it is okay for an individual to reuse a particular work or literary work that is protected under copyright provided that it is made subject to certain limitations and for a defined purpose.
Other laws in Bollywood
Obscenity is considered one of the reasons for which the public exhibition of a film can be banned. Sections 292, 293 and 294 of the Indian Penal Code lists out punishments for offenses of obscenity. These sections criminalize the public exhibition, circulation, import and export, and advertisement of obscene Acts subject to punishment including fine and imprisonment. Acts which indecently depict women and Acts showing an indecent representation of women on films are prohibited by the Indecent Representation of Women (Prohibition) Act 1986 and these obscene Acts are also punished under Section 67 of the Information Technology Act 2000, which states that the circulation and publication of obscene content on any electronic form is punishable by law.
Communal conflict and religion are sometimes the reasons for which parts of films get censored or get banned and this is mostly because of hate speech. Hate speeches are the speeches that not only offend an individual but also disturb the sentiments of a caste in a way that the members of that caste are looked at in a low manner in society and a sense of hatred is created against the members of the caste. Section 153-A of the Indian Penal Code 1860 criminalizes Acts that encourage enmity among persons on reasons relating to religion, race, place of birth, residence, language, etc. and includes Acts that are detrimental to the maintenance of harmony in society. Section 295 A states the punishment for Acts that are deliberately and maliciously intended to resent religious sentiments of a group of people by degrading their religious beliefs or their religion. Section 505(2) states the punishment for making statements that encourage enmity, hatred, or bad will among different groups of people in society.
Films cannot show scenes which encourage incitement of hatred against the Government of India and these types of scenes are punishable by Section 124A of the Indian Penal Code 1860.
The defamation of individuals through scenes shown on Indian films are also punishable under Section 499 of the Indian Penal Code 1860. Defamatory words are those words that are spoken or written in such a manner that it tarnishes the reputation of an individual and in the process creates a sense of hatred by other people towards the individual harming the overall image of the person in the society.
Indian filmmakers have to be very careful while planning the content of the movie because one wrong move and the next thing we know is that the film is denied for public exhibition by the authorities.
The social dynamics of India are changing and it is necessary for the old laws relating to cinematography in India to adapt because, at times when important issues of Indian society are depicted on the big screen, things get difficult for the filmmakers. Modern movies are not only about two people falling in love but films now cover the concerning matters of modern society relating to same-sex marriages, problematic situations which are overlooked by the political leaders, problems arising out of caste system, difficulties faced by women, and other taboos existing in our Indian society. Regulating the public exhibition of films just to safeguard the interests of individuals or for the threat of public protests or such comparable reasons are thoughtless and breaches the right of freedom of expression and speech.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: