The issue of broadcasting films certified ‘A’ by the Central Board of Film Certificate (‘CBFC’) has been contentious for quite some time now. Recently, four major broadcasters have decided to completely prohibit the telecast of such films. (See here and here) While the issue of desirability of such censorship has already received attention (see here), this post will focus on the legislative basis for permitting such a move.
The Cable Television Networks Rules, 1994 (‘CTN’) framed under the Cable Television Networks (Regulation) Ordinance, 1994 provide for the relevant statutory basis for censorship.
Rule 6(1)(o) of the CTN provides for the Programme Code and states that no programme should be carried in the cable service which contravenes the provisions of the Cinematograph Act, 1952 (‘Cinematograph Act’) and is not suitable for unrestricted public exhibition. The explanation provided to the section states that the term “unrestricted public exhibition” shall have the same meaning as assigned to it under the Cinematograph Act.
Section 4 of the Cinematograph Act states that if any person desires to exhibit any film, then such film is required to be certified by the CBFC. Upon examination, the CBFC can certify the film as follows:
- It can be certified for unrestricted public exhibition;
- It can be certified for exhibition that is restricted only to adults or any particular class of persons;
- The film can be refused sanction for public exhibition all together.
A bare reading of Section 4, Cinematograph Act shows that a distinction is made between films restricted for exhibition to adults only and films that can be refused sanction for public exhibition all together. However, Rule 6(1)(o) of the CTN prohibits the exhibition of movies that are not suitable for “unrestricted public exhibition”. In this context, the scope of the term “unrestricted public exhibition” needs to be determined.
The explanation provided under the CTN states that reference must be made to the Cinematograph Act to determine the meaning of the term “unrestricted public exhibition”. A strict interpretation would cover only movies sanctioned under Section 4(1)(i) of the Cinematograph Act whereby movies are certified as such for ‘unrestricted public exhibition’.
However, such an interpretation would defeat the distinction made under the Cinematograph Act for movies that are restricted for exhibition to adults or specified class and movies that can be refused public exhibition all together. Such an interpretation would mean that even films that are restricted in its exhibition to adults/specific group of persons would be prohibited from being telecasted. Since the legislature has made a distinction between those films that cannot be certified for viewing altogether and those which are restricted to certain persons, then it means that the films falling in the latter category are meant for public exhibition. However, if such films are not included within the ambit of ‘unrestricted public restriction’, then they would be prohibited from being shown to the public which in effect, goes against the purpose of certifying them and distinguishing them from films that have been refused certification all together. Thus, a more meaningful and harmonious interpretation would be to understand the prohibition contained in Rule 6(1)(o) CTN Rules to cover only films that are refused sanction for exhibition all together.
Interestingly, in the case of Pratibha Naitthani v. Union of India, the issue before the Bombay High Court was whether adult films certified as such by the CBFC can be telecasted by the cable operators. After referring to Section 4 and Rule 6(1)(o), the Court adopted the narrow approach and held that the term ‘unrestricted public exhibition’ would cover only those movies that have been certified as such under Section 4(1)(i), Cinematograph Act.
Presently, one can say that in order to comply with CTN’s mandate to telecast only programmes that are suitable for ‘unrestricted public exhibition’, the broadcasters are justified in prohibiting the telecast of adult movies as it is difficult to restrict the ‘adult movies’ to only adult viewers on television. This reflects a simple technological adjustment to comply with the CTN’s mandate whereby adult movies that cannot be ‘restricted’ to only adults, are all together prohibited from telecast as they are not fit for ‘unrestricted public exhibition’. However, this argument shall also be hit by the the logic of creating the distinction between adult movies and movies prohibited from exhibition all together. As identified above, there is a conflict between the provisions of the CTN and Cinematograph Act which, in turn, calls for a clarification or a legislative amendment.
Thus, so far, the broadcasters can justify their stance under the provisions of Rule 6, CTN though the film producers also can make a strong case by taking the benefit of the conflict between the provisions of CTN and Cinematograph Act.