[ad_1]
Against this backdrop, the article examines the permissibility of enacting the Bill in India. The Indian Supreme Court, in its celebrated Puttaswamy case, held that every Indian legislation must conform with its international commitments, including satisfying the three-part test of legality, legitimacy and proportionality emanating from Article 19(3) of ICCPR for imposing restrictions on freedom of speech.
1. Legality
To fulfil the test of legality, restrictions must be provided by or under a law in a precise, clear and accessible manner so the individuals can regulate their conduct accordingly. No unfettered or sweeping discretion should be conferred on the implementation authority.
Presently, filmmakers need to carefully produce and regulate their expression at two stages – while creating the film and thereafter, while incorporating CBFC’s recommendations during the certification process. The Bill has added a third stage of scrutiny. Unlike earlier – where a film could be re-examined only at the behest of a court’s order – the government would have unbridled powers to order a film’s re-examination.
Even though a film satisfies the outlined yardsticks by not being against ‘public order’ or ‘morality’ during the primary certification process, its evaluation on the same grounds after its release in the public domain and after a lapse of considerable time (which could be months, years or even decades) may paint a different picture. This is because these terms fail to engender any precise meaning in light of the prevailing and continually evolving societal development and norms. In the absence of any statutory definition, filmmakers cannot foresee the rescission of their films after receiving certification via due process, thereby making the law imprecise.
Moreover, the Bill allows every public reference to trigger the recertification process without stipulating any standards or guidelines to first assess the veracity of such references. It also fails to prescribe any preconditions for making such references in order to eschew frivolous or vexatious references. In effect, the decision to order a film’s re-examination is solely based on the government’s subjective satisfaction, in turn ceding unfettered powers to the implementing authority.
2. Legitimate Aim
To fulfil the test of a legitimate aim, there must exist a direct and immediate connection between the expression and the threat that the legislation aims to eliminate. The state must not only pursue a ‘compelling’ or ‘legitimate’ interest, but also adopt a measure having rational nexus to such an interest. In other words, the means adopted must be suitable.
Drafters reasoned that the Bill fulfils this requirement because “sometimes complaints are received against a film that allude to violation of Section 5B(1) … after a film is certified.” However, the Bill does not tackle any novel predicament or ‘interest’ as citizens already have a post-certification redressal mechanism by way of approaching the court of law. For instance, certification of the film ‘Bandit Queen’ was quashed by the Delhi High Court. Similarly, the Bombay High Court had directed the CBFC to re-certify the film, ‘Jolly LLB’ after incorporation of certain modifications requested by the petitioners.
The existing certification process establishes this system for citizens to identify and eliminate potential threats. But by permitting the Board to review its own earlier decision, the Bill permits arbitrary usage of executive powers having no nexus to the aim sought to be achieved.
3. Proportionality
To fulfil the test of proportionality, the restriction must be limited to achieve the legitimate aim and embody the least intrusive method. This entails a ‘balancing test’, according to which, the beneficial impact of an encroachment must outweigh its invasive means.
In this regard, re-examination is disproportionately intrusive as it introduces a dual-censorship mechanism. Once a film has been released, its revocation or suspension will create a repressive system that could unduly restrict the free circulation of ideas and opinions in the entertainment industry. Simply put, the restrictions on free speech and artistic expressions that the Bill seeks to impose outweigh the amorphous standards of public morality and decency that the additional censoring mechanism is meant to establish.
Additionally, re-censorship will cast a chilling effect on cinema by instilling a perpetual fear in the mind of the filmmakers that their film, even after being sanctioned for exhibition, can be abruptly hauled off the screen. This effect can be especially problematic as it will dismantle a powerful pillar of contemporary expression and significantly alter the narrative of Indian cinema.
Since the certification rules are applicable to all films, the Bill will also affect international filmmakers seeking to enter the Indian subcontinent. In the past, the CBFC has banned and heavily edited the content of multiple foreign movies such as Deadpool, Fifty Shades of Grey and The Wolf of Wall Street. This resulted in a huge backlash from foreign producers who sought to release their movies in India. Hence, if more rigorous measures were to be implemented, international filmmakers could fear the ensuing economic repercussions and completely withdraw from the Indian market.
Considering that India is the largest democracy in the world that promises liberty of thought and expression, this Bill sets a dangerous precedent for other nations to emulate. Several regions, such as China, Russia, and the Middle East, have a national censorship mechanism. Consequently, they might seek credence from the Indian example to introduce a dual-censorship regime, thereby establishing a retrogressive system across the globe.
The extant restrictions and heavy penalties on free speech in India necessitate an overhaul to pave way for more progressive laws. However, by allowing the government to unpredictably alter the future of films in the country, the Bill breaches the three canons of legality, proportionality and legitimate aim, which as per the Indian Constitution and the ICCPR, form the basis for imposing restrictions on citizens’ freedom of speech. The belated obstruction of public exhibition of films amounts to an unreasonable suppression of legitimate expression. As a result, the Bill has been pilloried by many filmmakers, academicians, and free speech activists. Since it is riddled with many legal and logical fallacies, the legislature must refrain from enacting a law that will certainly endanger cinematic expression in India and eventually compromise its democratic fabric.
[ad_2]
