Recommendations On The Draft Cinematograph (Amendment) Bill, 2021 - Broadcasting: Film, TV & Radio

The Ministry of Information & Broadcasting ("MIB") has undertaken the admirable initiative of bringing much needed and critical amendments to the currently existing Cinematograph Act, 1952 ("Cinematograph Act") vide the Draft Cinematograph (Amendment) Bill, 2021 ("Draft Bill") released to the public on June 18, 2021.

The Cinema industry in India has undergone rapid changes ever since its inception and more so in the recent past, owing to revolutionary changes in technology. Among other things. Laws pertaining to regulation of cinematography and public exhibition were first enacted in 1918 through the Cinematograph Act of 1918 ("1918 Act"). This primarily aimed at censorship of content to be exhibited publicly. Under the 1918 Act, cinematograph films were regulated provincially, which was later amended to a central form of regulation.

Sanctioning of cinematograph films for exhibition falls under item 60 of List I (the Union List) of 7th Schedule of the Constitution of India, while item 33 in List II (the State List) deals with theatres and dramatic performance of cinemas, subject to the regulation under item 60 of the Union List. Owing to the subject matter of cinematograph films being under both – the State and the Union List, there arose many discrepancies in the overall regulation of cinematograph films in India, under the 1918 Act. In 1952, the Cinematograph Act was enacted to bring under a central law, twin aspects of regulation of cinematograph films, being: (a) examination and certification of films for public exhibition and (b) regulation of cinemas including their licensing.

The Draft Bill seeks to address certain longstanding issues of concern to the film industry in India. The Draft Bill addresses the following key concerns:

Creation of age-based certification of films for educated content segregation
Powers of the Central Government to re-certify cinematograph films
Anti-piracy measures and penalties for their contravention

We submit our views and observations on the Draft Bill through the present recommendations ("Our Comments").

Our Comments on the Draft Bill are structured in two parts. In PART A, we examine the existing framework for censorship, certification of films and powers of the Central Government in India and certain foreign jurisdictions. In PART B, we encapsulate our recommendations on the provisions of the Draft Bill.

PART A: JURISPRUDENCE

A1. Existing certification framework in India

A1.1 Certification

Under the Cinematograph Act, Section 3 establishes the Central Board for Film Certification ("CBFC"), the primary function of which is to certify films for public exhibition.

Certification of films is mandatory for their public exhibition and persons seeking public exhibition of films are required to obtain requisite certification by making an application to the CBFC.

The film for which certification is sought is examined by the CBFC and upon review it is allotted a certification as prescribed under Section 4 of the Cinematograph Act. Section 4 (1) presently allows for the sanction of the film for following categories of exhibition:
1. Unrestricted public exhibition or 'U' certification [Section 4 (1) (i)] for unrestricted viewing by all persons;
2. Unrestricted public exhibition with advisory for parental guidance for children below the age of 12 years. Proviso to Section 4 (1) (i) states that if the CBFC is of the opinion that it is necessary to issue caution that the said film may not be in the best interests of children below the age of 12 years to view the film without parental guidance, an advisory to that effect may be issued. CBFC may sanction the film for unrestricted public exhibition with an endorsement to that effect or 'UA' certification
3. Public exhibition restricted to adults or 'A' certification [Section (1) (ii)]
4. Public exhibition restricted to members of any profession or any class of persons, having regard to the nature, content and theme of the film or 'S' certification.

The Central Government has the power to issue guidelines for certification of films under Sub-Section (2) of Section 5B of the Cinematograph Act ("Certification Guidelines") and in supersession of the notification of the Government of India in the Ministry of Information and Broadcasting No. S.O. 9E, dated January 07, 1978. The Certification Guidelines lay down objectives of certification in addition to listing down specific content that should be avoided in films. Further, the Certification Guidelines provide guidance on contextual and overall review of the film and the review of titles among other things.

Under Section 5A (2) of the Cinematograph Act, the after examination of the film, the CBFC may also issue a refusal to grant the certificate. The grounds for such refusal include the film or any part of it being against the interests of the sovereignty and integrity of India, the security of the State, friendly relations, with foreign States, public order, decency or morality, or if the film involves defamation or contempt of court or is likely to incite the commission of any offence.

A1.2 Appeals and Modifications

Any orders of the CBFC, which deny or reject certification, or in the opinion of the applicant unfairly or wrongly certify a film can be appealed. Newly amended Section 5C of the Cinematograph Act provides the remedy of filing an appeal before the High Court against such an order of the CBFC, within 30 days of such an order being passed.

The promulgation of Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 ("2021 Ordinance"), which came into force on April 04, 2021 brought about a critical amendment in the Cinematograph Act. Vide the 2021 Ordinance, the functioning of the Film Certification Appellate Tribunal ("FCAT") was abolished. The erstwhile FCAT was a specialized statutory body, which was primarily established to address the concerns of filmmakers and applicants seeking certification of films.

While the remedy of filing an appeal against the orders of CBFC remains, it is imperative to note that under the present appeal mechanism, the aggrieved party can now only approach the High Court against such orders.

Further, under Section 4, while reviewing the films for certification, the CBFC may suggest modifications and direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition.

A2. Powers of the Central Government under Cinematograph Act

In the context of regulation of films, in addition to the certification and monitoring powers of the CBFC, the Central Government has also been granted the power to:
1. Issue guidance for the grant of certification of films under Section 5B (2) of the Cinematograph Act;
2. Suspend or revoke the certificate of a film, if it is found in violation of the exhibition certificate it was granted under Section 5E of the Cinematograph Act;
3. Revise or overturn the decision taken by the CBFC with regard to any particular film, by calling for its record and passing orders accordingly under Section 6 of the Cinematograph Act; and
4. Exempt any film from the provisions of the Cinematograph Act under Section 9 of the Cinematograph Act.

While the Central Government actively exercises aforementioned powers for the regulation of films in India, the revisional powers of the Central Government have continued to be scrutinized and interpreted by the Courts in order to prevent pre and post censorship leading to a violation of the Constitutionally guaranteed right to freedom of speech and expression.

In the case, K.M. Shankarappa v. Union of India [(2001) 1 SCC 582], the Hon'ble Supreme court, upon interpreting Section 6(1) of the Cinematograph Act held that vide Section 6 (1), the Central Government aims to exercise powers of revising the decision of the then appellate body, i.e., the FCAT. In light of the fact that the FCAT has been abolished, remedy against orders of the CBFC can only be sought before High Courts in India by way of an appeal. Under the present regime, if the provisions of the Draft Bill are given effect to, the Central Government, by virtue of Section 6 (1) and its new proviso, shall have the power to revise the decision of the High Courts itself. This position is wholly contrary to the principles of separation of powers enshrined in the Constitution of India.

In the decision in K.M. Shankarappa case (Supra), the Hon'ble Supreme Court also specifically noted that:

"The executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution. The legislature may, in certain cases, overrule or nullify a judicial or executive decision by enacting an appropriate legislation. However, without enacting an appropriate legislation, the executive or the legislature cannot set at naught a judicial order. The executive cannot sit in an appeal or review or revise a judicial order. The Appellate Tribunal consisting of experts decides matters quasi-judicially. A Secretary' and/or Minister cannot sit in appeal or revision over those decisions. At the highest, the Government may apply to the Tribunal itself for a review, if circumstances so warrant. But the Government would be bound by the ultimate decision of the Tribunal."

The Hon'ble High Court of Karnataka, holding Section 6(1) of the Cinematograph Act unconstitutional, observed that Section 6(1) is against the very basic structure of the constitution and cannot be allowed to stand. The aforementioned Section violates the Rule of Law, which is a part of the basic structure of the Constitution, by providing a statutory authority to the executive to sit in review over quasi-judicial decisions. It was held that:

"It is true that there is no strict separation of powers under the Constitution inasmuch as the judicial functions can also be entrusted to the authorities other than the judicial authorities; but this does not mean that the Executive can exercise or can be entrusted with the power of judicial review over the decisions of judicial authority i.e., a Court or a Tribunal. It is an inalienable power and function of the judicial authority to see that the laws are obeyed and the Executive works within the framework of law under the Constitution. There is a strict separation of powers in the sense that the Legislative, Executive and Judicial Powers are defined. Though the Legislature may overrule or nullify the judicial and executive decisions by enacting appropriate legislation, but it cannot decide or give judicial verdict by legislation; it can pass a law taking away the very substratum of a judicial verdict. Similarly, the Executive also cannot set at naught the judicial decisions. It cannot exercise the power of judicial review."

It is imperative to note that the separation of powers is in fact, a critical function of the Indian democracy. India has a rich jurisprudential history of exercise of judicial review to protect the fundamental rights of citizens as are enshrined in the Constitution of India. In a series of cases, the Supreme Court has struck down legislations which had severe impact on restricting the fundamental right of freedom of speech and expression and also the supremacy and finality of judicial decisions.

In K.A. Abbas v. Union of India [(1970) 2 SCC 780], the Supreme Court, expressing its opinion on the right to freedom of speech and expression with respect to certification of films, observed that:

"We express our satisfaction that the central government will cease to perform curial functions through one of its Secretaries in this sensitive field involving the fundamental right of speech and expression. Experts sitting as a Tribunal and deciding matters quasi-judicially inspire more confidence than a Secretary and therefore, it is better that the appeal should lie to a court or Tribunal."

The Hon'ble Supreme Court's observation clearly points to the fact that when matters of rights pertaining to freedom of speech and expression are in issue, it is always best served that such decisions are taken by an authority acting judicially. As is clearly mentioned, judicial or quasi-judicial authorities inspire more faith than persons acting for or on behalf of the Government.

The Hon'ble Supreme Court has, time and again, reiterated that the CBFC must operate as an independent and autonomous statutory body, which is above political and societal manipulation. In K.M. Shankarappa, while deciding that any concerns of law and order which are raised in response to a film should be dealt with by the State Governments, however censoring or denying public exhibition to such a film would not be the solution. The Hon'ble Supreme Court held:

"We fail to understand the apprehension that there may be a law and order situation. Once an Expert Body has considered the impact of the film on the public and has cleared the film, it is no excuse to say that there may be a law and order situation. It is for the concerned state government to see that law and order is maintained. In any democratic society, there are bound to be divergent views. Merely because a small section of society has a different view, from that taken by the Tribunal, and choose to express their views by unlawful means would be no ground for the Executive to review or revise a decision of the Tribunal."

The power of Central government to revise certification and/or restrict public exhibition of films is highly likely to be motivated by political ideologies and extremist elements in the society, even after judicial affirmation of the same. A provision such as Section 6 of the Cinematograph Act was primarily struck down on the grounds of maintaining such autonomy of the CBFC. Reinstatement of the provision will severely impact not only the autonomy of CBFC but also allow what would be a grave violation of the doctrine of separation of powers. In the case People's Union of Civil Liberties v. Union of India [(2003) 2 S.C.R. 1136], the Hon'ble Supreme Court has held that:

"It is a settled principle of constitutional jurisprudence that the only way to render a judicial decision ineffective is to enact a valid law by way of amendment or otherwise fundamentally altering the basis of the judgment either prospectively or retrospectively. The legislature cannot overrule or supersede a judgment of the Court without lawfully removing the defect or infirmity pointed out by the Court because it is obvious that the legislature cannot trench on the judicial power vested in the Courts."

The aforementioned existing jurisprudence is clearly indicative of the following:
1. Independence of statutory bodies is paramount and Central Government or executive should not sit in review over decisions of such bodies.
2. The doctrine of separation of powers stipulates that the Executive cannot sit in review of judicial and/or quasi-judicial orders, the Executive stands bound by orders of a judicial nature.
3. In order for the legislature to render a judicial decision ineffective is to enact a law which does not suffer from the same infirmity which led to it being struck down as the courts are bound to review and even strike down those laws which do not conform to the basic principles of the Constitution of India.

It is to be further noted that vide 2021 Ordinance, the FCAT has been abolished and all appeals from the decisions of CBFC are now directed to the High Courts. It is an established principle of law that the legislature envisages creation of statutory bodies and tribunals to lessen the burden on Courts in addition to render expert adjudication over specific subject matters. The FCAT was set up by the Ministry of Information and Broadcasting in 1983 to sit in appeals from the decisions of CBFC. The FCAT has rendered several well-informed decisions over decades and has proved to be an expert body. The abolition of FCAT will lead to creation of several problems for the industry players by leading to a steep rise in operational costs and delays and also gravely increase the burden on High Courts.

A2.2 Freedom of speech and Expression

The power of revision of the decision taken by the CBFC, which is granted to the Central Government under Section 6(1) not only leads to a violation of the basic structure of the constitution by violating the doctrine of separation of powers, but also leads to a violation of right to freedom of speech and expression under Article 19 (1) (a) of the filmmakers and applicants for certification.

The new proviso proposed to be added to Section 6(1) states that the revisionary powers of the Central Government may only be exercised on account of violation of Section 5B (1). This Section provides that a film shall not be certified for exhibition if the film or any part of it is against the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement of any offence.

It is imperative to note that while the revisionary powers of the Central Government have been limited to the restrictions under Article 19 (2) of the Constitution of India, it has been time and again held that over-regulation and censorship of content leads to a violation of this fundamental right. In the case Romesh Thappar vs. The State of Madras [AIR 1950 SC 124], the Hon'ble Supreme Court struck down the Madras Maintenance of Public Safety Act 1949 on the grounds that while it was aimed at maintenance of 'public order', the possibility of it imposing restrictions on a fundamental right could not be ruled out. The Hon'ble Supreme Court held that:

"Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as if may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void.

In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent."

Section 6, which allows the Central Government to revise the decisions of the High Court and CBFC has a high likelihood of being motivated by societal and political forces. The courts in India have time and again given utmost importance to the freedom of speech and expression, not to mention, special protection to the medium of films as they impact a wider range of audience.

Further, the Courts have also refrained from imposing strict restrictions on filmmakers in the light of artistic freedom being paramount to the exercise of freedom of speech and expression. In the case, Priya Singh Paul v. Madhur Bhandarkar and Ors. [(2018) 13 SCC 438], the Hon'ble Supreme Court refused to quash a certification granted to the film 'Indu Sarkar', holding that "As far as the exhibition of the movie is concerned, we are of the convinced opinion that it is an artistic expression within the parameters of law and there is no warrant or justification to curtail the same." The importance of freedom of speech and expression has been held to be of utmost importance for cinematograph films in numerous cases such as Bobby Art International v. Om Pal Singh Hoon & Ors. [(1996) 4 SCC 1], S. Rangarajan Etc v. P. Jagjivan Ram [1989 SCC (2) 574] and Phantom Films Pvt. Ltd. And Anr. v. The Central Board Of Film Certification [(2016) 4 ABR 593].

Relying on the abovementioned jurisprudence, it is clear that while reasonable restrictions on the right to freedom of speech and expression as per Article 19 can be imposed, it is imperative that any such restriction imposed must be accompanied with detailed and valid reasons for the same. The effect of amendments proposed in the Draft Bill not only have the effect of revision of the orders of the High Courts and that of the CBFC by the Central Government, but the same also does not impose any obligations on the Central Government to issue notice or allow the party to be heard. Further, the Central Government is also not under any obligation to give any reasons for revising the CBFC certification or cancelling the same, the ramifications of which could affect not only the future marketability of the film but also lead to several losses pertaining to export of films (which mandatorily requires a certification).

A3. Existing legislations for piracy in India

According to the FICCI-EY Report titled 'Playing by New Rules' released in March 2021, India's media and entertainment industry was estimated to be collectively valued at INR 1.38 trillion i.e., 18 billion USD in 2020 and is estimated at INR 1.79 trillion, i.e., 24 billion USD in 2021. The M&E sector in India continues to be one of the fastest and most revenue generating sectors, a large part of which is comprised of the film industry.

In 2019, the total revenue of the film industry was pegged at INR 191 billion. Since then, due to the impact of Covid-19, the industry has faced losses due to elimination of theatrical releases and also increased piracy. It was reported that in 2020, the online film piracy rose by 62% causing heavy losses to the industry stakeholders.

As per industry predictions, the creative economy of India is set to double by 2025. Such a massive generation of revenue and inflow to the economy deserves to be specifically addressed through not only more nuanced regulatory measures but also with stricter measures to secure the revenue and creative/proprietary rights in content.

Piracy has not only been the biggest leak in the revenues of the Indian film industry but has also been recognized as the key source of funding in many criminal and terrorist activities. The legal recognition of piracy of media and entertainment content as a punishable offence has therefore been aggressively pursued by the industry players.

Presently, piracy in the film industry is not addressed in the Cinematograph Act, and in fact, no dedicated law presently exists to tackle the menace of piracy. However, it must be noted that the following laws do provide protection to rights of stakeholder in the film industry in certain specific domains.

A3.1 Copyright Act, 1957 ("Copyright Act")

Section 65A 'Protection of Technological Measures' of the Copyright Act provides that:

"65A. Any person who circumvents an effective technological measures applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine."

While this section is aimed at deterring cybercriminals from using or misusing the copyrighted content, it is limited in its scope and meant for protection of technological measures.

Further, Section 65B 'Protection of Rights Management Information', provides that is any person:

"65B. ...

(ii) distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of any work, or performance knowing that electronic rights management information has been removed or altered without authority,

shall be punishable with imprisonment which may extend to two years and shall also be liable to fine."

This section addresses specific activities of unauthorized distribution, copying and communication to public of copyrighted content.

Section 63 of the Copyright Act also provides that any infringement of copyright is an offence punishable with imprisonment which may extend up to 3 years and/or fine which may extend up to INR 2 Lakh.

A3.2 Information Technology Act, 2000 ("IT Act")

Section 66 of the IT Act provides for punishment up to 3 years of imprisonment and fines up to Rs 2 lakhs for illegal online distribution of copyrighted content.

A3.3. 'Dynamic injunction' as established by Courts to curb online piracy

In the light of lack of consolidated legislative enactment to address specifically the menace of piracy, the courts in India have established certain injunctive remedies to provide relief to parties facing heavy losses due to online and digital piracy. In the case UTV Software Communication Ltd. v 1337X.TO and Others [2019(78) PTC 375(Del)], the Hon'ble High Court of Delhi established a new concept of 'dynamic injunction'. Briefly, the complaint raised by UTV was centered on online piracy of content faced by them through illegal pirated websites. It was pointed out that since the pirate websites operate from several domain names and do not have any information regarding their ownership nor any indication of the jurisdiction from which they operate, the court was approached by way of a John Doe plaint to seek the remedy of blocking of the domain itself. The evolved the concept of a 'dynamic injunction' wherein several pirated websites could be blocked under one john doe complaint and that the injunction would continue to operate against all such infringing parties.

This has been able to address piracy to a certain extent, however due to the lack of technological development to enhance traceability of such pirate websites, it still poses a great threat to revenues of content creators.

Further, it is also noted that the neither Cable Television Networks (Regulation) Act, 1995 nor the Telecommunication (Broadcasting And Cable) Services Interconnection (Addressable Systems) Regulations, 2017 define piracy or carry any specific anti-piracy provisions.

In light of the abovementioned legislations, while the aspects of infringement and unauthorized use are covered, it is imperative to bring into force provisions specifically dealing with the menace of piracy in order to not only safeguard the revenue of industry players but also to prevent losses to the Government Exchequer.

PART B: OBSERVATIONS ON THE DRAFT BILL

B1. Cover note to the Draft Bill

The Draft Bill addresses certain crucial elements of regulation of the Cinematograph Act. The key paras from the Draft Bill are reproduced hereinbelow:
1. The following provisions relating to certification of films under 'unrestricted public exhibition' category are proposed to be amended so as to further sub-divide the existing UA category into age-based categories, viz. U/A 7+, U/A 13+ and U/A 16+:
  1. proviso to clause (i) of sub-section (1) of section 4 - Examination of films ii. Clause (a) of sub-section (1) of section 5A - Certification of films
  2. clause (b) of sub-section (2) of section 6 - Revisional powers of the Central Government
2. As per the provision of the present Act under sub-section 3 of section 5A, the certificate issued by the Board is valid for 10 years. Although this restriction on validity of certificate for only 10 years has been removed through executive orders, the existing provision in the Act requires to be amended to remove the stipulation such that the certificate is valid in perpetuity.
3. In the existing Act under section 6, the Central Government has been empowered to call for the record of proceedings in relation to certification of a film which is pending or has been decided by the Board and pass any order thereon. This, in other words, means that the Central Government, if the situation so warranted, has the power to reverse the decision of the Board. However, the Hon'ble High Court of Karnataka in KM Shankarappa Vs. Union of India case stated that the Central Government cannot exercise revisional powers in respect of films that are already certified by the Board. This has also been upheld by the Hon'ble Supreme Court vide judgment dated 28/11/2000 in Civil Appeal 3106 of 1991. The Hon'ble Supreme Court has also opined that the Legislature may, in certain cases, overrule or nullify the judicial or executive decision by enacting an appropriate legislation. In this regard, it is stated that sometimes complaints are received against a film that allude to violation of Section 5B(1) of the Cinematograph Act, 1952 after a film is certified. Article 19(2) of the Constitution imposes reasonable restrictions upon the freedom of speech and expression in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement of any offence.
4. Film Piracy, particularly release of pirated version of films on internet, causes huge losses to the film industry and government exchequer. In most cases, illegal duplication in cinema halls is the originating point of piracy. At present, there are no enabling provisions to check film piracy in the Cinematograph Act, 1952 making it necessary to have a provision in the Act to check film piracy.

The following section of Our Comments specifically deals with the proposed amendments within the Draft Bill. Hereinbelow, we examine the changes proposed and encapsulate our recommendations to the same.

B2. Age based Certification Categories

Proposed Amendment: The Draft Bill proposes that the category of certification which certifies films for 'unrestricted public exhibition' be further bifurcated into the following categories: U/A 7+, U/A 13+ and U/A 16+ based on the age of viewers.

Under the present regulation of cinematograph films, a four category certification is available under Section 4 of the Cinematograph Act. The objective of certifying a film to place it within a particular category is essential to target audience and prevent age-inappropriate content to be viewed by children or specific sections of a society.

However, it is imperative to note that while certification is essential for public exhibition, it is undertaken merely to separate the category of viewers and target audience. The implications of certification therefore, have a decidedly severe impact on the number and type of audience viewing the same.

While it may be expedient to further bifurcate the category of 'unrestricted public exhibition', it is imperative to lay down the objective criteria for certifying the films differently under the 'U' certification.

As is the practice followed by the Motion Pictures Association of America ("MPAA"), the film rating categories, i.e., PG, PG-13, R or NC-17 allotted to each certified film by the he Classification and Rating Administration ("CARA") are specifically accompanied by a 'rating descriptor'. This rating descriptor guides parents on the type of content that resulted in the film being assigned a particular rating. The descriptor indicates the type and intensity of specific elements in the film.

The rating descriptor for each rated film is determined by Chairperson of CARA in conjunction with the other raters (members of CARA) who viewed the film. The rating and the rating descriptor are both appealable before the appeal board constituted under CARA.

AnantLaw's Recommendations:

The proposed amendment in Draft Bill creating further classification and bifurcation of category of certification for unrestricted exhibition of films into U/A 7+, U/A 13+ and U/A 16+ may be accompanied by certification descriptors, which provide indicators of the type of content present in the film, leading to the classification/certification category of a film. This will help the viewers in exercising educated discretion in making the film available to children of a certain age. Certification descriptors will also assist the filmmakers exercise caution in including age-appropriate content in films, which will have an impact on the final target audience, market for the film and the financial return and popularity of the same.

The certification descriptors should also be based on objective criteria developed for assigning such certifications. It is recommended that that such criteria be incorporated in the Certification Guidelines issued by the CBFC.

Further, the certification descriptors issued along with certification should also be made appealable so as to provide the filmmakers a remedy to unjust or overly censoring descriptors or certifications based on them, especially as they have a impact on the market for such films and the entirety of profits resulting from them.

As the Programming Code under the Cable Television Networks Regulation Act 1994 only allows the exhibition of 'U' certified films to be displayed on television, the CBFC should clarify:
1. Whether the sub-divisions within the 'U' certification will all be allowed to be screened on television;
2. Whether the films certified U/A 13+, U/A 16+ can be exhibited on television at all times or only post the prime time.

Owing to the technological changes in the media and entertainment industry, the scope of exhibition of films has extended to OTT platforms and digital media. The shift from theatrical to digital exhibition of films has also been fast tracked due to the onset of Covid-19 virus, which has almost eliminated theatrical exhibition of films. It is imperative to note that during this time, the first release and exhibition of films has been taking place on OTT platforms such as Hotstar, Netflix, Amazon Prime and other prominent platforms alone. While the OTT platforms have enacted a self-regulation code and guidelines, there is no statutory requirement of certification from CBFC for such exhibitions.

It is recommended that owing to the aforementioned changes, exhibition of films on OTT platforms should also require relevant certification of the films from CBFC before they are exhibited on such platforms.

B.3 Duration of Validity of Certificate

Proposed Amendment: Under Section 5A (3), the period of validity of a CBFC certificate is proposed to be extended to perpetuity. Presently, a certificate granted to a film by the CBFC is valid for a period of 10 years.

"5A. Certification of films - ....

(3) Subject to the other provisions contained in this Act, a certificate granted by the Board under this section shall be valid throughout India for a period of ten years"

The proposed amendment to the validity of CBFC certificate under Section 5A of the Cinematograph Act is a welcome change. An audit conducted by the Comptroller and Auditor General of India (CAG) – Director General of Audit (Mumbai) for the period between 01.10.2013 to 31.03.2015, reported that there have been several instances of revalidation of CBFC certificates which had been issued with a validity period of 10 years, but due to re-validation, acquired validity in perpetuity. It was found that as per a notification issued by MIB in September 1984, the Central Government exempted all films from the 10 year cap on validity and the same was extended to perpetuity.

The present amendment codifies the validation of CBFC certificates in perpetuity thereby removing an operational cost incurred by filmmakers and rightsholders for revalidation.

B4. Revisional powers of the Central Government

Proposed Amendment 4: The Draft Bill proposes the Removal of the provisions struck down by the Supreme Court of India in the K.M. Shankarappa case (Supra) in relation to Section 6(1) the Cinematograph Act. Further, it is proposed to add a proviso to Section 6(1) to include re-examination of a film in the following manner:

On receipt of any references by the Central Government in respect of a film certified for public exhibition, on account of violation of Section 5B(1) of the Act, the Central Government may, if it considers it necessary so to do, direct the Chairman of the Board to re-examine the film.

In the case S. Rangarajan Etc vs. P. Jagjivan Ram, 1989 SCR (2) 204, the Hon'ble Supreme Court observed, "Movie is the legitimate and the most important medium in which issues of general concern can be treated." The court went on to add "The State cannot prevent open discussion and open expression, however, hateful to its policies."

It is to be further noted that under the present regime, Section 5B (1) already provides that a film 'shall not be certified' if it is against sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement of any offence. If a film is certified under in accordance with the provisions of Section 5B(1), it should render the revisionary power of the Central Government an action of over-regulation and censorship.

It should be further noted that the Section 6 only comes into operation once the film has been certified. Once the film is certified, if the decision of the CBFC regarding certification is to be appealed, it shall be done so before the relevant High court. Upon the certification being modified or ratified by the High Court, as per Section 6, the Central Government still retains the power to revise the same in line with provisions of Section 5B (1) of the Cinematograph Act.

Following from the above, the proposed amendment would lead to a violation of the doctrine of separation of powers as the orders of High Courts would be open to review and scrutiny by the Central Government. Lack of finality of judicial decisions. And additionally would cause a fetter in the right of filmmakers to freely exercise their right to freedom of speech and expression owing to the pre and post regulation of content and censorship under the Cinematograph Act.

AnantLaw's Recommendations

It is recommended that the Section 6(1) is structured in a manner which only provides for the powers of the Central Government to be operative before any appeal is made to the High Courts of the Country.

It is recommended that in the event any issue of violation of provisions of Section 5B is raised post certification, both parties, i.e., the CBFC and the Central Government are open to approach relevant High Court for revised certification or other appropriate remedy. By doing so, the instance of the Central Government exercising unchecked power over the content of films shall removed, the parties will be able to adjudicate before the High Court in order to safeguard or protect their fundamental rights. Further, the provision for revision of the order of a High Court by Central Government will also be removed so as to avoid a grave violation of the doctrine of separation of powers.

It is further recommended that any action taken by the Central Government in respect of CBFC Certificates should at the least be accompanied by the grant of right of hearing to the parties and place an obligation on the Central Government to give reasons in writing.

B5. Anti-Piracy Measures

Proposed amendment 4: Anti-Piracy measures. The Draft Bill proposes insertion of new section 6AA - Prohibition of unauthorized recording

"6AA. Notwithstanding any law for the time being in force, no person shall, without the written authorization of the author, be permitted to use any audiovisual 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.

Explanation.- For the purposes of this sub-section, the expression "author" shall have the same meaning as assigned to it in clause (d) of section 2 of the Copyright Act, 1957.'.

While the proposed amendment addresses the traditional method of offline piracy i.e., recording of content in film theatres through the use of an audio-visual recording device, it is submitted that this severely limits the scope of the provision.

The proposed Section 6AA fails to take into account the more advanced methods of piracy such as piracy of films online, breach of security and online data theft and distribution of copyrighted content on different modes and mediums such as television and internet.

In light of there being no specific law dedicated to piracy of films in India, there is a requirement of comprehensive laws dedicated to the offence of piracy. the present Section 6AA re-iterates the remedies available under the Copyright Act and the IT Act.

In addition to the above, the Draft Bill also proposes the insertion of new Sub-Section 1A in Section 7 – 'Penalties for contravention of this part'. The text of the proposed section is reproduced hereinbelow:

"7(1A). If any person contravenes the provisions of section 6AA, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to three years and with a fine which shall not be less than three lakh rupees but which may extend to 5% of the audited gross production cost or with both.

Provided also that, any act mentioned in Section 52 of the Copyright Act, 1957 (Act 14 of 1957) is not an infringement of the provision of Section 6AA of this Act."

The penalty provisions should also specify any exemption in cases where the offence is overlapping with other legislations.