This article is written by Manya Dudeja from the University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University. The article talks about the law behind filmmaking in India.
Filmmaking is an art, and like any other form of art, it is not devoid of regulation.
India is the largest producer of films in the world. Films in India have played an important role in forming world opinion about the country. Hence, in order to preserve the honour of India, its pride (filmmaking) has to be regulated.
While making a film, producers, directors, actors are required to comply with the law of the land. In the process of creating content, makers of films often find their laws being violated due to piracy issues. On January 19, 2019. Prime Minister Narendra Modi while inaugurating the National Museum of Indian Cinema in Mumbai talked about tackling the menace of camcording and piracy. Through this article, I will be analyzing these legalities that govern and safeguard the film industry in India.
The constitutional provisions behind making films in India
Article 19(1)(a) of the Indian Constitution protects the freedom of speech and expression of the citizens of the country. Filmmaking is an expression under the umbrella of this article. However, this freedom is in no way absolute. Its limitations can be found in Article 19(2). The article applies reasonable restrictions on this freedom in order to safeguard national interests.
Here, the famous example of the movie ‘Padmavat’ is relevant. The movie’s name had to be changed from ‘Padmavati’ to ‘Padmavat’ to obtain clearance from the censor board. This was a restriction imposed to restore public order as the name of the film created controversy and apparently hurt Rajput sentiments.
Other laws governing filmmaking in India are the Indian Cinematograph Act, 1952 and the Cinematograph Rules, 1983. The Central Board of Film Certification (CBFC) is a statutory board that is responsible for rating and providing clearance to the films before they are streamed for the general public.
Cinema (Entry 33) is a subject under the State List under Schedule 7 of the Indian Constitution.
Functions of the Central Board of Film Certification
The Board makes sure that the objective of the law is fulfilled and issues certificates to films for public exhibition. The board can either provide unrestricted exhibitions to the film or can limit its exhibition to adults.
On the other hand, it can also direct the filmmaker to modify or remove certain parts of the film. If required, the board can completely restrict the film from being exhibited.
The four kinds of certification that are provided by the board are:
- Universal (U): There is no age limit under this certification. It can be viewed by anyone who wishes to. These types of movies are often considered ‘family movies’.
- Parent Guidance (UA): Even though this type of movie is open to people from all age groups, children under 12 should view it under the guidance of their parents since the themes might be a bit sensitive.
- Adult Only (A): This kind of movie has a restricted viewership. It can only be viewed by people who have attained or are above the age of majority according to the Indian Majority Act, 1875. The age of the majority in the case of India is 18 years.
- Restricted to Special Class of Persons (S): The content, theme, etc. of this kind of movie is such that it is relevant to a particular class of people or professionals. Example: A film exclusively suitable for viewership by doctors only.
This system of certification is followed in order to ensure that the film put up for exhibition is responsibly created, is sensitive, and up to the standards of the society we live in.
Evolution of the Indian Cinematograph Act
Indian Cinematograph Act, 1920
- This was the first Cinematograph Act enacted in 1918.
- Under this Act, regional censors were established independently and were known as Censor Boards.
- These Censor Boards were placed under Police Chiefs in Bombay, Madras, Lahore, Calcutta, and Rangoon.
- The Bombay Board of Film Censors was established after independence and the autonomy of regional censors was abolished.
Indian Cinematograph Act, 1952
Insights of the Act:
- This Act was introduced in order to replace the old Indian Cinematograph Act, 1920.
- This Act forms the statutory basis for the Censorship of films in India and is a significant legislative enactment that governs the film industry.
- The Act’s objective is to ensure that cinematograph exhibitions are adequately controlled with particular attention to the safety of people attending them and to protect the public from improper and objectionable films.
- Under the Act, the Central Board of Film certification has been entrusted with the work of examining each and every film and with imposing sanctions if needed and providing certificates of eligible audience.
- The films should not be against the security of the state, public order, decency, and morality. It should also not hinder India’s relations with other countries in the world order.
- The decisions taken by the Board can be appealed. Originally these appeals were worked upon by the Central Government but in 1986, a Film Certification Appellate tribunal.
- The Cinematograph Act, 1952 has been amended eight times till now in 1953, 1957, 1959, 1960, 1973, 1981, 1984, and 2017. It was completely replaced once in 1952, to replace the Indian Cinematograph Act, 1952
S. Ranga Raan v. P. Jagjivan Ram
In this case, the film portrays that reservation based on caste is not right or rather it is bad for India and that reservation based on the economic conditions of the people is a better concept. The film also expressed disapproval of the exploitation of people based on caste.
The Supreme Court held that the film is unobjectionable and cannot be restricted since it in no way damaged constitutional values or public morality. It only put forth a different perspective which the producer or filmmaker is free to do. The perspective might be right or wrong but that is not the concern here, the filmmaker’s right to his opinion must be protected, for that is the first important thing in a democracy.
Gita Ram v. State of HP
In this case, the appellants were caught showing a blue film to young people, who had yet to attain the age of majority in their premises. The name of the film is, “size matter”. The appellants were convicted by the court under Section 292 of the Indian Penal Code read with Section 32 of the Indian Penal Code and Section 7 of the Cinematograph Act. When an appeal was filed by the appellants, the court denied it calling the offense heinous.
The Cinematograph (Amendment) Bill, 2019
The Bill was introduced in Rajya Sabha in February 2019 by the Information and Broadcasting Minister (State), Mr. Rajyavardhan Rathore. It amends the 1952 Act.
- The Bill proposes to impose a penalty on the offence of tampering with the film once it has been certified and on publicly exhibiting a film that has not been certified.
- Unauthorized Recording of a film (Section 6AA) i.e without the producer’s written authorization and transmitting the recording will attract imprisonment of up to 3 years, or fine up to Rs 3 lakh, or both.
- A new subsection (4) has been added to Section 7 of the Indian Cinematograph Act, 1952 which contains the definition for piracy and penal provisions. The section lays down the authorized audience and exhibitor of films and also the penalties relating to the exhibition of board-certified films.
Standing Committee’s Observation on the Amendment Bill
- The Committee felt that since the recording and reproducing content is already punishable with imprisonment for 6 months to 3 years under the Copyright Act, 1957, adding the provision in this law isn’t required.
- The Committee also expressed its concern about the effective implementation of piracy curbing provisions under the Copyright Act.
- Even though the Bill specifies the maximum term of imprisonment and the maximum fine as 3 years and Rs 10 lakh respectively in case the specified offence is committed, it does not specify the minimum term of imprisonment and the minimum fine that can be imposed. The committee feels that these provisions should be added to the Bill.
- The Committee also finds the fine of Rs 10 lakh to be inadequate and recommends that the same should be increased. It proposed the maximum fine to a range of 5%- 10% of the gross production cost of a film, as audited.
- There exists ambiguity regarding the nature of the offence in the bill, as to be bailable or non-bailable. It has been recommended to rectify this omission.
- The Bill does not include a fair use provision. This should be included in order to safeguard people who use short clips for non-commercial purposes such as for reviewing the film on social media. Even though the same has been covered in the Copyright Act, it should be included in the Cinematograph Act as well.
- The Bill does not define the word “knowingly” when it talks about prohibiting people from knowingly making copies of the film without authorization. This should be done to safeguard innocent people from punishment.
- The Committee felt that the Act needs updating and is not in line with the context of the time. The law needs updating to address some issues of certification.
- The Committee recommends the formation of a national level law similar to the Digital Economy Act. Since India has not signed the anti-counterfeiting trade agreements, a mechanism needs to be developed to purge cross-border piracy.
Possible Benefits of the Amendment Bill
- It would increase industry revenues since the circulation of pirated films at lower prices or free of cost causes immense loss to the industry.
- This would boost job creation.
- By punishing camcording and piracy, the act will be in line with the objectives of India’s National Intellectual property Policy by giving relief to the makers of films.
- The Amendment Bill if passed, will create a credible deterrence and encourage the film industry.
Possible drawbacks of the Amendment Bill
- There are some issues of lack of clarity in the Bill. This can lead to misinterpretations and could threaten the interests of people.
- Since the bill would make cinemas keep a strict check on customers using mobile phones or other electronic devices in the cinema hall, it might irritate the customer and they might feel dissatisfied with the services provided.
Some other important laws
Copyright Act, 1957
Clause (c) of subsection (1) of Section 52 of the Copyright Act, 1957, read with Rule 75 of the Copyright rules of 2013, deals with the menace of piracy of films. Infringement of copyright is a cognizable offence under Section 63 of the Copyright Act.
Punishment: The offender shall be punished with imprisonment of not less than six months and which can go on to extend till 3 years and with a fine of a minimum of Rs 50 thousand but which may extend up to Rs 2 Lakh.
The Customs Act, 1962
Under this Act, importation of a matter including films can be prohibited if it affects the security of India.
- The Information and Broadcasting Ministry has justified the proposed 2019 Amendment to the Cinematographic Act by saying that the provisions under Section 51 of the Copyright Act have proved insufficient to curb the menace of piracy and a specific stringent provision should be added for the same under the Indian Cinematograph Act.
However, the Committee felt that the Copyright Act has been deemed ineffective because it has not been implemented with the kind of seriousness that it requires.
Hence, time, technology, and people are ever-changing, hence the laws must serve the purpose of time as was envisioned by our forefathers while developing the Constitution of India. The various provisions and the Act bring in new perspectives and new provisions to satisfy the needs of a changing society, while it also brings with it ambiguities and lacunas that satisfy some. The affirmative provisions would be appreciated through debates and discussions and the dissatisfaction will be dealt with in the due process of time through effort and negotiation by the producers of films, the audience, and the government.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: