Should CBFC's Advisory Panel Include Persons With Disability To Deal With Films Portraying Disability? Supreme Court To Consider

The Supreme Court on Monday (March 11) issued notice in a petition challenging the alleged insensitive portrayal of disabled individuals in the film 'Aankh Micholi,' produced by Sony Pictures. The Court, in the present matter, will consider the potential implications of the Rights of the Persons with Disabilities Act 2016 ( Act of 2016) on the certification process for films involving differently-abled individuals.

The bench led by CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra observed that the present petition does not seek any ban or censorship of the film in question, but rather urges the need to have a broader outlook on the interplay between the Act of 2016 and the Cinematograph Act 1952.

“The question which would arise in the framework of the present case is the impact of the provisions of S. 3 of The Rights of the Persons with Disabilities Act 2016 (Equality and non-discrimination) on the very aspect of the necessary power to S.3 and 6 ( Protection from cruelty and inhuman treatment) on the Statutory power to certify films.”

The petitioner contended that the film's trailer depicted characters with diverse disabilities in an offensive manner. Senior Advocate Sanjay Ghose (assisted by Advocates Pulkit Agarwal and Jai Anant Dehadrai), appearing for the petitioner, highlighted derogatory terms used for persons with disabilities in the film, emphasizing the need for sensitivity. 

The petitioner contended that as per the trailer, the film 'Aankh Micholi', insensitively portrayed several characters with a diverse set of disabilities. Senior advocate Sanjay Ghose submitted that a “ Person with a speech defect is called 'atki hui cassette', person with Alzheimer's and dementia is called 'bhulakad baap', a person with hearing issues is called a 'sound-proof system'... This isn't one of those cases where we are trying to ambush them and get some personal or anything…we come with a simple issue that people having disabilities, they should have a voice in the whole process (certification/advisory process)”

“Their contention was, look we have portrayed what has happened on the ground only to show that people have undergone that situation,” CJI said.

In response, Mr Ghose pointed out that the film's basic storyline involved individuals hiding their disabilities to deceive someone into marriage. While acknowledging the slapstick nature of the film, Ghose emphasized the importance of sensitivity, especially considering the Supreme Court's efforts, such as the Mitti Cafe, to normalize and integrate disabled persons into mainstream society.

“ They have shown people who have to hide their disability in order to entrap a woman to marry. This is the basic storyline, it's supposed to be slapstick, I have no problem with slapstick also, but they should have some kind of sensitivity. For example, your lordships have opened the Mitti Cafe here, lordships are normalizing, bringing them (disabled persons) to the mainstream, what is being done here (in the film) is to actually make disability an issue”

Cinematograph Act 1952 & The Powers Of The Advisory Panel - Petitioner Urges For Inclusive Opinion

The main contention of the petitioner was the need for the certification board to consider the voice of the people from the disabled sections before certifying the film. Relying upon Section 5(1) of the Cinematograph Act 1952 (Act of 1952), Mr Ghose opined, “At least on the advisory panel, they (disabled persons) can be co-opted if the movie is coming….the sensitivities can be taken into account, if its slapstick they make so”.

Mr Ghose added that while the advisory panel consists of 25 members, one could possibly be from the disabled section either physically or mentally. The senior counsel suggested that having representation on the advisory panel would ensure the consideration of sensitivities in the certification process.

S. 5(1) states, “For the purpose of enabling the Board to efficiently discharge its functions under this Act, the Central Government may establish at such regional centers as it thinks fit, advisory panels each of which shall consist of such number of persons, being persons qualified in the opinion of the Central Government to judge the effect of films on the public, as the Central Government may think fit to appoint thereto.”

S.5(1) of the Cinematograph Act provides for the constitution of advisory panels by the Central Govt. to judge the effect of films on the public. S.5(4) prescribes it is the duly of the advisory panel to review the film and give its recommendations to the Censorship Board.

See The Plot From The Director's Lens - Respondent Stresses The Need The See Message In The Story

Sr Advocate Mr Parag Tripthi appearing on behalf of the Film Producer Sony Pictures clarified that a disclaimer is already given at the beginning of the film. It was further emphasized that the whole purpose of the movie is to show the struggles of differently-abled persons in social settings 

“ They (disabled persons) are loveable characters and you end up liking them. So it is a part of assimilation. The leading lady in the movie suffers from night blindness … and the groom suffers from day blindness …then they fall in love and they are married. The idea is that in the broad framework of humour, you get to love those characters.”

Referring to the trailer, Mr Tripathy submitted that a holistic view should be taken and it would be incorrect to form a legal opinion of the film just through the trailer. He expressed, “ Look at the complete dish, not the spoon”.

At the request of the counsels, the bench viewed the trailer on their desktops.

The court issued notice to the Union government, limiting the scope to the impact of disability portrayal on the statutory power to certify films. The Guidelines for Certification of Films for Public Exhibition were referenced, which emphasized the need to prevent scenes showing abuse or ridicule of physically and mentally handicapped person. The court requested the Solicitor General's assistance and scheduled further examination after three weeks.

“The question which would arise in the framework of the present case is the impact of the provisions of S. 3 of The Rights of the Persons with Disabilities Act 2016 on the very aspect of the necessary power to S.3 and 6 on the statutory power to certify films. The Guidelines for Certification of Films for Public Exhibition inter alia provide the board for Film Certification shall ensure that scenes showing abuse or ridicule of physically and mentally handicapped persons are not presented needlessly. Issue notice to the Union limited on this aspect alone as this has some bearing on the proper constructions of the provisions of the statute particularly when films involving differently-abled persons are sought to be exhibited. We request the learned Solicitor General to assist us in the matter. List after 3 weeks.”

It was clarified that these proceedings are not related to the certification or the exhibition of the film.

They Are Laughing At The Disability Itself - Petitioner In Person Expresses Anguish

The Petitioner Mr Nipun Malhotra, is facing locomotor disability and is a disability rights activist who was physically present before the court. In his brief expression over the purpose of filing the petition, he underscored the difference between portraying daily challenges faced by disabled individuals and ridiculing the disability itself.

“There is a difference between an incident a disabled face (for instance if such person is not offered a menu at the restaurant or is not able to walk steps.) and laughing at the disability itself. In this particular case, they are not clearly laughing at a situation which a person with disability faces on a daily basis the disability itself and that is why I felt I should file this petition.”

CJI acknowledged the efforts of the petitioner and stated that the petitioner had raised a crucial point.

Background

In January, the Delhi High Court refused to entertain a public interest litigation claiming that the film “Aankh Micholi”, which was released in November last year, is derogatory to people with disabilities.

A division bench comprising of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora said that Courts generally do not interfere once the Central Board of Film Certification (CBFC) gives a certificate to a film.

Observing that a lot of latitude is given in cinematic work, the court remarked:

“We do not want too much censorship. We are one of the few countries where there is prior censorship. We have gone the extra mile. Normally, in the rest of the world, it is only grading which takes place and there is no prior censorship. We are a country where scenes are deleted before a film's release.”

The bench observed that creative freedom should be cherished and that there is no need to curtail it.

The PIL was moved by Nipun Malhotra, a disability rights activist suffering from a locomotor disability, claiming that the film was disparaging and violative of the rights of several classes of PwDs, including those with speech, vision and hearing disabilities.

The plea sought direction from the producer of the movie to make a short awareness movie about the hardship faced by PwDs and create awareness about the subject.

It also sought a direction upon the producer to ensure an equal opportunity policy is formulated in conformity with the Rights of Persons With Disability (RPWD) Act and encourage employment of people with disabilities.

Case Details: Nipun Malhotra vs Sony Pictures Films India Pvt Ltd SLP(C) No. 005239 - / 2024

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