Supreme Court To Hear Plea To Exclude Documentaries From Pre-Censorship

During the hearing of pleas filed against pre-censorship of films, the Supreme Court was yesterday informed that the petitioners' main grievances relate to regulation of documentaries and Centre's revisional power over the CBFC in matters of film certification.

A bench of Justices BR Gavai and KV Viswanathan heard the matter.

Advocate Gautam Narayan appeared and argued for the petitioner(s). He submitted that the matter raises the issue of Court's judgment in KA Abbas v. Union of India not considering the earlier judgment in Brij Bhushan v. State of Delhi. It was contended that documentaries do not fall within the definition of 'cinematograph' as defined in the Cinematograph Act, 1952 and the provisions of the Act need to be considered.

"provisions provided for constitution of the Board and the Advisory Committees...these require consideration, because there are no qualifications prescribed as to who should be the Chairperson...there are 25 members, what sort of qualification these members should possess, their experience in the field of certification of films and other forms of audio-visual demonstrations..."

"Entirely cease pre-censorship in films also?", Justice Viswanathan queried Narayan. The counsel responded in the affirmative.

He further pointed out that the Union notified an enactment on 5 August, 2023, but the same does not address the concerns raised in the petition. "It makes very minor modifications to the provisions under the Act, it provides for age-based classification for certification, etc. But insofar as the provisions that we have put in issue, amendment does not deal with any of those challenges", the counsel said.

At this point, Justice Viswanathan remarked, "This is like saying [Article] 19(2) restriction also should not be [seen]...". However, Narayan countered, saying, "We are not saying that. We are focusing essentially on documentary films...".

He drew the Court's attention to two prayers made in the petition:

(i) "reading down provisions of the Act so as to exclude from its purview documentary films and declaring documentary films do not fall within the ambit of Section 2(c) read with Section 2(dd) of Cinematograph Act and consequently not subject to pre-censorship norms", and

(ii) "directing the central government to frame appropriate rules so as to incorporate provisions of disclaimer, text, length, etc. that should appear before the beginning of documentary films and to that extent, alter the provisions of the Act"

On the other hand, Additional Solicitor General Aishwarya Bhati, for the Union, submitted that it would be better for the Court to have advantage of a determination on the issues by the High Court. She added that some developments have taken place since filing of the petition, such as the 2023 notification, which includes some regulations for OTT pre-censorship, etc.

In response to this, Narayan reiterated that the notification does not deal with documentaries. However, the ASG was quick to add, "It's a developing field".

Reference was also made during the hearing to Section 6 of the Act, which gives revision powers to the Union over a film's certification process, and the need for independence of the regulator (CBFC). At one point, the bench questioned as to why such petitions should directly come to the Supreme Court. In reply, Narayan said that the pleadings in the matter are already complete.

Ultimately, the Court allowed an application filed for amendment of a connected petition and posted the matter to January, 2025.

Case Title: AMOL PALEKAR Versus UNION OF INDIA MINISTRY OF INFORMATION AND BROADCASTING THROUGH SECRETARY AND ANR., W.P.(C) No. 187/2017 (and connected case)