The Ministry of Information and Broadcasting has proposed to introduce the Cinematograph (Amendment) Bill, 2021.The new proposal would amend the Cinematograph Act of 1952 to grant the Centre "revisionary powers" and allow it to "re-examine" films that have already been certified by the Central Board of Film Certification (CBFC).

The Cinematograph (Amendment) Bill, 2021 proposed the following provisions:

Revision of Certificate.

The Ministry of Information and Broadcasting recommends amending the Act to provide the Centre the revisionary powers in cases where Section 5B(1) is violated i.e the principles for guidance in certifying films. Nevertheless, Section 6 of the existing Act already empowers the Centre to request records of proceedings in connection with a film's certification. The proposed amendment, according to the Ministry, "means that the Central Government, if the circumstances so warrant, has the ability to revoke the Board's decision."

In November 2020, the Supreme Court observed that the Centre cannot use its revisionary powers on films that have already been granted a certificate by the CBFC. However, the new proposal allows for government intervention.  “... It is also proposed in the Draft Bill to add a proviso to sub-section (1) of section 6 to the effect that, upon receipt of any references by the Central Government in respect of a film certified for public exhibition on account of a violation of Section 5B (1) of the Act, the Central Government may, if it considers it necessary, direct the Chairman of the Board to re-examine the film,”

Anti-piracy provisions

According to the Ministry, The Cinematograph Act, 1952, does not currently contain any enabling measures to combat film piracy. The proposal seeks to introduce Section 6AA, which will make it illegal to record without permission. “Notwithstanding any law in force, no person shall be permitted to use any audio-visual recording device in a place to knowingly make or transmit or attempt to make or transmit or abet the making or transmission of a copy of a film or a part thereof without the written authorization of the author,” according to the proposed section. It also included that the violations should be punished by imprisonment for a period of "not less than three months but not more than three years" and a fine of "not less than Rs 3 lakh but not more than 5% of the audited total production cost or both."

Age-Based Categorization

The proposal further recommends that age-based categorization and classification should be implemented. The Cinematograph Act, 1952, provides for the certification of films under three categories i.e. unrestricted public exhibition or U, parental guidance required for children under 12 or U/A, and adult films. However, in the revised draft, the categories are divided into three age groups: U/A 7+, U/A 13+, and U/A 16+. The new IT guidelines for streaming services reflect the planned age categorization for films.

Perpetual Certification

In the proposal the government intends to award films a perpetual certification. The certification granted by the CBFC is only valid for ten years, according to the Act's current provisions.

Criticism & Feedbacks.

It is pertinent to note that proposal comes soon after the Film Certificate Appellate Tribunal(FCAT) was abolished on April 4th by an ordinance, which was the last resort for filmmakers who disagreed with the certification issued to their film by CBFC.

According to the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, the duty of FCAT has been assigned to the "Concerned High Court" as a result of revisions to the Cinematograph Act, 1952. Considering the workload of High Courts, the condition of conflict resolution through litigation in India appears to be dire. In the midst of all of this, the new ordinance would only add to the existing workload of the judiciary. It is unrealistic to expect the High Courts to match FCAT's speed and efficiency.

On a monthly basis, the Tribunal used to handle a significant number of matters involving film certification, with the adjudication procedure involving extensive viewing of the disputed films in order to reach a conclusion.

As a result of the huge number of cases pending before the High Courts and the lengthy adjudication procedure necessary, it is evident that seeking relief from the High Courts would cause delays and result in high litigation expenses. The risk of receiving relief from the High Courts will always dissuade filmmakers from approaching the Court as a delay shall cost a financial loss to the producers. Additionally, in the absence of the FCAT, the repercussions of any conflict or issue with the CBFC are so severe that filmmakers will be hesitant to use their creative freedom.

Originally posted on www.kpalegal.com on 13th July 2021