FCAT as arbitrary as CBFC when it comes to certification
Ever since the appointment of Pahlaj Nihalani as the Chairperson of the Central Board of Film Certification (CBFC) also known as the Censor Board, the Board has been in the news usually for the wrong reasons. The orders of the CBFC can be appealed to the Film Certification Appellate Tribunal (FCAT), which hears appeals against the CBFC.
The Tribunal is currently headed by Justice Manmohan Sarin, a retired judge of the Delhi High Court, who was appointed in November 2016 and has four other members. Two of the members are active members of the BJP: Shazia Ilmi who is a former journalist/AAP member and Poonam Dhillion, a former actress. The remaining two members of the tribunal are Advocate Bina Gupta and journalist Shekhar Iyer, currently the political editor of the Deccan Herald.
Since November 2016, FCAT under Justice Sarin has over-ruled the CBFC in at least half the cases, although at times it can be as vague as the CBFC. The appeals heard by FCAT can be divided into two categories.
The first category of appeals before FCAT are those dealing with a change in certification category from ‘adult’ certification to ‘unrestricted’ or ‘U/A’ certification which is ‘unrestricted’ certification but with an additional endorsement such as ‘parental guidance’. These appeals are filed to get the ratings changed so that the movie can be viewed by a wider audience and earn more revenues because a movie classified as ‘adult’ will lose viewers who are below 18 years.
The second category of appeals before FCAT are those dealing with cases where the CBFC has denied certification for a film, thereby resulting in a de facto ban on public screening of the movie. Such movies can still be released via internet based platforms like YouTube or viewed at private gatherings.
In both categories the bans or the demand for cuts are justified on the basis of the eminently vague ‘guidelines’ which are the subject of an ongoing constitutional challenge.
The First Category – Appeals pertaining to certification category
There have been 5 appeals in this category. These appeals have been filed by the producers of the movies ‘31st October’, ‘Kaay Raao Tumhi’, ‘Great Grand Masti’, ‘Danish Girl’ and ‘Hateful Eight’. In all these cases, the CBFC had certified the movies as ‘A’ for different reasons ranging from too much violence to obscenity and vulgarity.
‘31st October’ was a movie on the anti-Sikh riots and had been subject to an ‘A’ rating because of violent scenes in the movie. On appeal, the producer began a bargaining process with the FCAT. This bargaining usually involves the producer offering to make voluntary cuts and FCAT usually makes suggestions for a few more cuts. Here are a few of the cuts that the producer of 31st October offered by the producer and recommended by FCAT during the course of the bargaining:
“..mute the dialogue of the politician who talks of revenge for every bullet fired”
“Reduce to flash the scenes where corpses are shown lying scattered on the road”
“..delete the scene where Dilpreet and her father-in-law are assaulted and killed with the five-year old watching it hiding in her room.”
With these cuts, FCAT ruled that a U/A rating could be granted, with parental caution. The same process was followed with the appeal regarding the certification for the ‘Danish Girl’ which dealt with transgender issues and sex reassignment operations and the ‘Hateful Eight’ which like all Tarantino movies has its share of blood and gore. In both cases, FCAT ordered CBFC to grant a U/A certificate with parental caution, for satellite broadcast.
In another case, an appeal was filed by the producers of Kaay Raao Tumhi, a movie described by the producer as “a light-hearted comedy depicting the desires and aspirations of elderly people of that age”. The CBFC had granted an A certificate. On appeal, FCAT over-ruled the CBFC and ordered it to grant a U/A certificate with parental caution without any cuts.
The single thread running through these orders of FCAT is the lack of reference to any legal principles that would help guide future producers of movies. The lack of legal reasoning and the culture of bargaining and negotiations that are reflected in the FCAT’s orders open the door to arbitrary application of law in the certification game.
The second category – Appeals pertaining to de-facto bans on public screening
There have been 5 appeals in this category where, as explained earlier, the CBFC simply refused certification for the film, which in effect prevents the public screening of the movie and is akin to a ban. The five movies in this category are ‘1946 Calcutta killing’, ‘Lipstick under my Burkha’, ‘Rambhajjan Zindabad’, ‘G Kutta se’ and ‘Charlie and the Coca Cola Company’. These orders warrant a more detailed study because of the larger implications.
Let’s start with ‘Charlie and the Coca-Cola Company’. This documentary was focused on farmer agitations against two Coca-Cola companies for extraction of ground water. The CBFC cited the following reasoning while denying certification: ‘The film more than education is misleading and politically motivated. Hence, the film is not passed in the present form’. The producers appealed against this decision to FCAT on the grounds that the Board had failed to provide any reasons to back its sweeping conclusion. The CBFC usually extracts particular dialogues or statements and cites a guideline as the reason for seeking a cut from the movie. In its order, FCAT cites guideline 2(xviii) to deny certification. This guideline allows the CBFC to deny certification in case the movie results in ‘defamation of an individual or a body of individuals, or contempt of court…’. Citing this guideline, the tribunal states, ‘The film is replete with defamatory imputations made against Coca-Cola company. The defamatory imputations include Coca Cola being known for having people killed i.e. attributing criminal conduct, acquiring land illegally and forcefully.’ After extracting several more instances of alleged defamatory statements, the tribunal concludes ‘Considering the large number of defamatory imputations which run through the entire documentary, the film does not deserve certification for public exhibition.’
This reasoning provided by the Tribunal is quite stunning. A certification proceeding is not the forum to determine whether content is defamatory because defamation or the lack thereof in this case can be established only if Coca-Cola sues the filmmaker in civil or criminal proceeding and establishes through a trial that the statements are in fact defamation. Such defamation lawsuits can be decided only by a civil court. It is quite extraordinary for FCAT to conclude the statements are in fact defamatory without conducting a trial. At the most, if Coca-Cola has already won in defamation proceedings, FCAT can cite such a judgment to deny certification. The documentary has however been made available on YouTube.
Another movie where FCAT upheld the CBFC’s decision to not certify a documentary, is ‘1946 Calcutta killing’. The reason provided by the CBFC for denying certification was that ‘The film is extremely polarizing and may create disharmony in the society. The film also contains derogatory and false references about Hon’ble leaders of that era’. Before the FCAT, the producer agreed to make a total of 64 edits and submitted to the tribunal that it was ready to make even more cuts as suggested by the Tribunal. The Tribunal however declined to make any recommendations and told the producer that ‘given the theme, presentation and depiction of the violence, content of the dialogues and their presentation, portions of the film require revisions and/or rewrite. These are basic functions which are best left to the discretion and judgment of the producer.’ It therefore declined to over-rule the CBFC on the grounds that the movie may hurt religious sentiments, inflame communal passions and that it was all too gory.
In the remaining three cases, FCAT overruled the CBFC but only after demanding cuts from the producers of all three movies.
Let’s start with the Haryanvi movie ‘G Kutta se’ which was denied certification on the grounds that the presentation and visuals of the film were full of cuss words, dual meaning and sexual innuendos and hence violate the CBFC guidelines. When the appeal was heard by FCAT, it pointed out that of the 9 members on the revising committee, although 4 members had upheld the earlier decision to deny permission, of the remaining members, 3 had recommended the grant of ‘A’ certificate with 4 cuts, while 2 had recommended ‘A’ certificate with 6 cuts. The tally was therefore 4 versus 5. This simple arithmetic was lost on the CBFC and it took FCAT to point this out. FCAT then ordered the CBFC to grant an ‘A’ certificate subject to 6 rather absurd cuts. As with many of these orders, there is little or no reasoning justifying FCAT’s demand to delete these scenes from the movie.
The next movie is ‘Rambhajjan Zindabad’. Starring Om Puri, this movie is a satire on a government scheme to give out monetary compensation to women who have been raped. The board and the revising committee both denied certification on the grounds that film is explicit with abusive language with references to politics, double meaning dialogues and dialogues that may provoke caste and community. As is often the case, the producer began the process of negotiating with the FCAT for certification in exchange for making cuts. The tribunal gave the producer two weeks to remove ‘objectionable portions’. The movie was certified as ‘A’ after the producer made several cuts to the movie. Once again, FCAT’s legal reasoning is quite sparse. In fact, I would say that there was no reasoning in its order.
The last movie for discussion is ‘Lipstick under my Burkha’. The movie is about 4 women and covers various issues like marital rape, inter-religion relationships, resisting patriarchy etc.The movie was denied certification by the CBFC because of ‘continuous sexual scenes, abusive words, audio pornography and a bit sensitive touch about one particular section of society’. After the CBFC denied certification, an appeal was filed before FCAT which after viewing the movie, pointed out its concerns. The producer then apparently made 16 ‘voluntary’ cuts. Not satisfied, the tribunal suggested even more cuts some of which are rather absurd. Sample this, ‘Reduce sex scene from 1.28.43 to 1.30.20. The reduction has only been made by 12 seconds. This needs to be conveniently reduced by at least another 30 seconds without affecting the film’.
Here’s another gem from this order, ‘We find the use of word ‘Chutiya’ at 00.15.33 is inappropriate in the situation and deserves to be muted. It is spoken by the mother who finds her daughter in the evening of her engagement, having sex with her lover boy. In common parlance the word is understood to mean imbecile or a nincompoop, which would hardly be appropriate. It serves no purpose. The same may be muted’. The first problem with this reasoning is the tribunal’s failure to cite authority for the meaning of ‘chutiya’ and the second problem is if the word serves no purpose why should it be deleted? The FCAT is not in the business of being a film critic. The minority opinion in this order by Shazia Ilmi disagreed with the majority on the issue of further cuts, especially regarding the use of the word ‘Chutiya’, which in her opinion was used a manner of colloquial usage.