The government’s decision last week to abolish the Film Certification Appellate Tribunal has attracted much criticism from Bollywood as well as liberal sections of the media, who have painted the tribunal as a defender of free speech and artistic freedom.

The tribunal was set up under the Cinematograph Act, 1952, to hear appeals against the Central Film Certification Board (or CBFC, better known as the Censor Board). It was slated for demolition under the Tribunal Reforms Bill, 2021 that was introduced in Parliament in the last session. It met with a premature death after the government decided to go down the ordinance route.

Filmmakers seeking certification for their works will now have to have to approach High Courts if they have any grievances with the CBFC.

While the government may be faulted for taking the ordinance route and not consulting stakeholders before taking its decision to abolish the FCAT, Bollywood’s newfound love for the tribunal is surprising. This is not a body known for its intellectual rigour or adherence to basic free speech principles. Bollywood’s fear appears to be that the abolition of the FCAT will lead to delays in disputes over certification by the CBFC, which is one of the most arbitrary bodies in this country.

Big upside

There appear to be no academic studies that measure the time taken by FCAT versus the time taken by High Courts but it is possible that the High Courts with their heavy case-load may take slightly longer to hear such cases. It should however be remembered that the FCAT’s case-load will be spread across more than a few High Courts and thus the delays may not be as bad as anticipated by some.

The big upside however of having High Courts hear such appeals at first instance is the fact that High Courts are far more independent than the FCAT, which in the past has had active members of political parties, sitting on the tribunal as members. For example, not so long ago, FCAT had Shazia Ilmi as one of its members, despite her then active membership of the Bharatiya Janata Party. Similarly, Poonam Dhillon who has been with the BJP since 2004, was also appointed to the FCAT.

Apart from the issue of greater judicial independence, High Courts also tend to be far more rigorous in their legal reasoning, while examining issues of free speech and artistic freedom, than the FCAT, which on most days is as arbitrary as the CBFC.

The trailer of 'Kaalakaandi'.

Most certification disputes before the FCAT can be classified into three categories. The first and most litigated category are the use of swear words in any language depending on the certification sought by the filmmaker. The second category is anything to do with “sex”, “sexuality” or “sex scenes:. The third category pertains to political speech, whether in commercial cinema or political documentaries.

The first two categories of litigation are decided quite randomly by the FCAT. Take for example its decision in a case involving the movie Kalaakaandi, where it ordered the phase “gadhe ka lund” to be replaced with “gadhe ka ling”. However, usage of the word “bhenchod” (sister fucker) was allowed, because in the tribunal’s esteemed opinion, this was common parlance amongst gangsters. Yet the use of the word “madarchod” (motherfucker) was not allowed in the same movie.

While dealing with a sex scene in the same movie, the FCAT had this to say, “…We find that in scene at 00:53, the woman is seen straddling the man. This scene needs to be curtailed by 50% with further direction that it does not depict the act of coitus being performed.”

As is usual with the FCAT, the order doesn’t provide any reasons as to why a filmmaker cannot show a couple simulating a sex scene in a particular sex position. This is only one example of bizarre reasoning by the FCAT. There are several more examples available of poorly reasoned FCAT orders which can be accessed on the Ministry for Information and Broadcasting website. A common issue running through these FCAT orders is the lack of reference to well established free speech principles or even basic legal reasoning.

Political speech

In the third category dealing with political speech in movies and documentaries, the High Courts are definitely more liberal than the FCAT. The most famous example in this category is the Udta Punjab case where both the CBFC and the FCAT ordered a series of ridiculous cuts, including dropping the name “Punjab” from the title. Those orders came in the backdrop of a high stakes state elections in Punjab, where drug trafficking and usage was a major bone of contention. Since the movie was focused entirely on the drug problem in Punjab, it was hardly surprising that it had become a political hot potato.

In this case, an appeal to the Bombay High Court resulted in a long judgment over-turning most of the cuts. There are other examples apart from Udta Punjab in this category. Two of these cases involved documentaries by award-winning film makers like Anand Patwardhan and Pankaj Butalia. In the case of Patwardhan’s documentary about War & Peace, the FCAT ordered deletions of slogans and a speech by a Dalit leader criticising the detonation of nuclear bombs on Buddha Jayanti as well as an addition of a disclaimer about the Tehelka tapes being sub-judice before a judicial commission.

In a well-reasoned order, the Bombay High Court applied tested free speech principles and precedents to overturn the FCAT’s order. Similarly, Bhutalia’s documentary on Kashmir, called Textures of Loss was faced with arbitrary cuts as well as a demand to add a disclaimer by FCAT. It took an appeal to the Delhi High Court for all the cuts as well as the demand for a disclaimer to be set aside in a well-reasoned judgment that was upheld on appeal.

The trailer of Pankaj Butalia's 'Textures of Loss'.

And then there is the case of Charlie & the Coca-Cola Company, which was a documentary on allegedly pollution by Coca-Cola, the FCAT upheld the CBFC’s order to refuse certification to the documentary film on the grounds that it was defamatory of Coca-Cola. In effect this meant that the producer could not publicly exhibit the movie. Once again it was the Delhi High Court that intervened to overrule FCAT and clear the decks for the public exhibition of the movie.

Apart from the fact that High Courts generally reason their orders much better than the FCAT by properly interpreting legal principles pertaining to free speech, there is also the fact that High Courts have a far more diverse range of judges to hear these cases when compared to the FCAT which has the same membership for years together. In other words, if the FCAT has conservative members appointed to it for a five-year period the industry is doomed.

High Courts, however, are far more diverse because of the sheer number of judges and given the roster system different judges will be hearing these cases at different points of time in the same High Court. A diversity of judicial opinion, especially on issues related to free speech and creative freedom should be welcome since this is how jurisprudence is enriched and developed.

While Bollywood may face some short-term pain with the FCAT being abolished, they should rest assured that the shift of powers to the High Courts will most likely liberate them to take more creative freedoms with their art in the long run.

The writer is a lawyer