Impact of abolition of Film Certification Appellate Tribunal on copyright and cinema

By Kiran Sona Puthan

Introduction

The government abolished the Film Certificate Appellate Tribunal (FCAT) earlier this week by ordinance. The Film Certificate Appellate Tribunal (FCAT) heard appeals from filmmakers seeking certification for their films. The Tribunals Reforms (Rationalisation And Conditions Of Service) Ordinance, 2021, which went into effect on April 4, modifies the Cinematograph Act, 1952 by removing some sections and replacing the word “Tribunal” with “High Court” in others. In effect, filmmakers will now have to file appeals with the High Court that they would have previously filed with the FCAT.
Ms Nirmala Sitharaman, the Finance Minister, introduced the Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 in Lok Sabha on February 13, 2021. The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, was promulgated by the President with immediate effect on April 4, 2021. this led to the dissolving of several appellate bodies and transferring their functions to judicial bodies.

The Film Certification Appellate Tribunal (FCAT)

The Film Certification Appellate Tribunal (FCAT) is a statutory body established by the Ministry of Information and Broadcasting, Government of India, under Section 5D of the Cinematograph Act, 1952 (37 of 1952). The Tribunal’s headquarters is located in Delhi.
The Tribunal is led by a Chairperson who is assisted by four members. The Government of India appoints a Secretary to oversee the Tribunal’s day-to-day operations. The Tribunal is headed by Chairperson Chief Justice (Retd.) Manmohan Sarin. Apart from the Chairperson, presently, the Tribunal has 4 (four) members, Ms Bina Gupta, Mr Shekhar Iyer, Ms Shazia Ilmi, and Ms. Poonam Dhillon.

If a film is to be released theatrically, telecast on television, or displayed publicly in any way in India, it must have a CBFC certificate. The CBFC, which is led by a Chairperson and consists of 23 members appointed by the Government of India, certifies films in four categories. They are:

• U: Unrestricted public exhibition (Suitable for all age groups)
• U/A: Parental guidance for children under age 12
• A: Restricted to adults (Suitable for 18 years and above
• S: Restricted to a specialised group of people, such as engineers, doctors, or scientists.

The CBFC may also refuse to certify a film. When a filmmaker or producer is dissatisfied with the CBFC’s certification or denial, they can file an appeal with the FCAT. In many cases, the FCAT has reversed the CBFC decision.
The Film Certification Appellate Tribunal (FCAT) hears appeals filed under Section 5C of the Cinematograph Act, 1952, which states that any applicant for a Certificate in respect of a film who is dissatisfied with an order of the Central Board of Film Certification (CBFC) may file an appeal directly with the Tribunal.

Notable Decisions

The Film Certification Appellate Tribunal (FCAT) has taken some notable decisions. The film, Lipstick Under My Burkha (2016) was denied certification by the Central Board of Film Certification. Pahlaj Nihalani was the CBFC Chairperson at that time. The certification was denied on the ground that it was “lady-oriented.” The director of the film, Alankrita Shrivastava filed an appeal with the FCAT. As a result, some scenes were cut, and the film was released with an “A” certification.
In the film MSG: The Messenger of God (2015), the controversial Gurmeet Ram Rahim Singh Insan of Dera Saccha Sauda was featured. Leela Samson, then Chairman of the CBFC, denied a certificate for the film. On appeal with the FCAT, it cleared the film for release. In protest, Leela Samson resigned from her post.

The film Haraamkhor (2015), directed by Shlok Sharma, starring Shweta Tripathi and Nawazuddin Siddiqui is a film about a School teacher’s relationship with one of his young female students. The CBFC refused to certify the film because of the storyline, calling it “very provocative.” The film was approved by the FCAT, which reasoned that the film was furthering a social message and was warning young girls to be aware of their rights.
For the film, Kaalakandi (2018), directed by Akshat Verma, starring Saif Ali Khan, CBFC suggested 72 cuts. On appealing to FCAT, the film got a U/A certificate and was released with just one cut.

Abolition of FCAT

Industry and legal experts believe that, rather than regularising and systematising the film certification process (as envisaged by the ordinance), the abolition of FCAT would create more inefficiencies, with the certification process becoming messier, costlier, and more time-consuming, given that litigation in India is highly priced and the courts are already pressed to their limits with the banning of certain films. Furthermore, the decision was made unilaterally, without any discussion.
Sharmila Tagore, a retired film actress, had been of the view that FCAT’s powers must be extended and expanded so that it could also discuss the numerous vexing public interest litigations (PILs) filed against films such as Jodhaa Akbar and The Da Vinci Code. That PIL tradition continues to be both painful and flourishing. The plan was to strengthen it so that it could address all cinema-related issues rather than having filmmakers rush to the nearest High Court.
Many filmmakers have been irked by the abrupt change. “Such a sad day for cinema,” film director Vishal Bharadwaj tweeted, along with a link to a news article about abolition.
“Do the high courts have a lot of time to address film certification grievances?” tweeted director Hansal Mehta. The tweet also read, “How many film producers will have the financial means to go to court? The FCAT discontinuation feels arbitrary and restricting. Why is the timing so bad? Why are you making this decision at all?”
Producer Guneet Monga too, slammed the move by the government.

Conclusion

The abolition of FCAT would only increase the powers of the CBFC, leaving filmmakers to deal with its whims. It would imply either conforming to the unreasonable aesthetic constraints imposed on them or altering and deleting scenes in accordance with the demands of the censor board rather than spending months and years settling things legally.
Ironically, it is CBFC, not FCAT, that requires a complete reform. Instead of easing restrictions on industry, the government is contributing to the creation of a more restrictive environment. More restrictions on filmmakers and content sanitization appear to be the thought of the future of Indian filmmaking.