Overburdened High Courts, delayed film releases: An explainer on what abolition of FCAT may lead to

'High Courts would be flooded with cases arising out of orders/actions of the CBFC, and keeping in view the huge pendency of cases, the release of the films would be inordinately delayed.”

Indranil Bhattacharya April 07, 2021 15:04:30 IST
Overburdened High Courts, delayed film releases: An explainer on what abolition of FCAT may lead to

Representational image

The sudden abolition of the Film Certification Appellate Tribunal, more commonly known as the FCAT, has astonished members of the film fraternity. Since its introduction in 1983, FCAT has been an important body that filmmakers could approach with an appeal against a decision of the Central Board of Film Certification (CBFC).

Before the introduction of FCAT, a filmmaker needed to appeal a constitutional court, a process that needed more time and resources, inevitably slowing down the release of a film. FCAT was a faster and cheaper option, and in some cases, such as the Bengali film Saheb, Bibi, Golam (2016) and the Hindi film Lipstick Under my Burqa (2017), an effective platform for filmmakers seeking a time-bound decision.

In the recent past, the decisions or actions of the CBFC has caused tremors across the film fraternity. The advent of the religious right-wing and strong majoritarian sentiments across the country has made CBFC extremely sensitive to sexuality, cuss words, and political references in films. While the CBFC has persistently attempted to sanitise films considered inimical to the dominant ideology, FCAT has functioned somewhat as a safety valve, exercising its quasi-judicial power to neutralise some of the extreme decisions of the CBFC.

However, in several cases, when the films have been perceived as completely antithetical to societal norms or values of the political establishment, FCAT has largely upheld the decision of the CBFC. In such cases, as in the documentary En Dino Muzaffarnagar (2014), FCAT has summarily rejected the film, amounting to a de facto ban. By and large, the FCAT, had tried to balance the rights of filmmakers and the extreme pressures majoritarian state apparatuses.  

The bigger picture 

The abolition of FCAT cannot be seen in isolation, and has a much larger context. On 4 April, the Union Government notified the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. The ordinance was promulgated two months ago in February. Through this Ordinance, the government has not only abolished FCAT, but eight other Tribunals or quasi-judicial bodies.

Instead of these Tribunals, the High Courts have become the appellate court. The function of some other Tribunals has been merged, presumably, as a way of rationalisation and reform of judicial administration in India. Through this same ordinance, The Indian Cinematograph Act of 1952 has been amended. Clause h in Section 2 of the Act has been removed, while all references to a Tribunal in Sections 5C and 5D has been removed or replaced by “High Court”, effectively ending the four-decade old FCAT.

On the face of it, the abolition of Tribunals, FCAT included, is an indirect result of a 2020 order by the Supreme Court in Madras Bar Association Vs Union of India, in which the apex court made scathing observations on the functioning of Tribunals in India. The court’s main concern was the tight control of the Executive, that is the government, on these Tribunals, which the petitioners argued, was contrary to Article 50 of the Indian Constitution, which mandates a separation between judicial and executive powers.

The Court had directed that “The Union of India shall constitute a National Tribunals Commission which shall act as an independent body to supervise the appointments and functioning of Tribunals, as well as to conduct disciplinary proceedings against members of Tribunals, and to take care of administrative and infrastructural needs of the Tribunals, in an appropriate manner. Till the National Tribunals Commission is constituted, a separate wing in the Ministry of Finance, Government of India shall be established to cater to the requirements of the Tribunals.” It is amply clear from the directives that, keeping in the mind the interest of litigants, the Judiciary had exercised its right to closely monitor the functioning of Tribunals.

It is bewildering that while the Supreme Court has mandated better functioning of the Tribunals, including proper qualification of the Tribunal members, better infrastructure, and revised pay, the government would go to the extent of abolishing a key Tribunal such as the FCAT.

The two influential Committees appointed by the Union Government, in the recent past, to examine the film certification mechanism – Justice Mukul Mudgal Committee (2013) and Shyam Benegal Committee (2018) both recommended reform of the FCAT and expansion of its jurisdiction. Under the law, only filmmakers who are aggrieved by a decision of the CBFC could approach FCAT. Members of the public who had grievances against a film approach the “nearest High Courts," often with the intention of “rabble-rousing or publicity”. This added to the pendency of overburdened courts.

Both these committees recommended that the aggrieved person must first approach the FCAT – which is a body constituted of members with expertise in both cinema and law. The decision to unilaterally abolish FCAT is in complete contradiction to the observation of these committees, which made these critical recommendations, after due deliberations involving all major stakeholders.

Now what?

Senior Advocate and former head of FCAT Dr Lalit Bhasin has observed in his emailed response to a query: “the FCAT was serving a very useful purpose as an appellate body. It effectively dealt with errors committed by the Certification Board. The consequences (of the abolition) would be that High Courts would be flooded with cases arising out of orders/actions of the Certification Board, and keeping in view the huge pendency of cases in the High Courts, the release of the films would be inordinately delayed.”

Approaching a High Court would also mean that most filmmakers will need to hire an advocate or a legal team, draft a proper petition, unlike in the FCAT, where most filmmakers would write a basic application and most often argue their cases in person. In the midst of the COVID-19 pandemic, when the pendency of appeals in High Courts are steadily rising, this decision by the Union Government is not administratively prudent. The FCAT, given its nature and mandate, took quick decisions on most films. Most appeals were disposed of after a single hearing, or at the most after two hearings.

A constitutional court, one can assume, must look at the merit of the case from all possible angles – a process liable to take longer than in the FCAT. High Courts have been largely known to give quick decisions on film certification issues, but one must understand that the Courts were adjudicating on the decision of FCAT – a quasi-judicial body that had at least one judge or a senior advocate who would issue a proper order. With the average CBFC orders being badly-worded, muddled, and even legally flawed, the High Courts might find it difficult to give quick relief to filmmakers.

Given the nature of the CBFC, the poor quality of Examining Committees and Revising Committees, it will be disastrous if a Tribunal is not positioned between the Board and the High Courts. A quasi-judicial body will have to be reintroduced, probably in a resurrected form. This new body, one could reasonably speculate, will also have OTT (Over The Top) platforms under its jurisdiction, apart from films meant for theatrical release.

The increasing influence of OTT or streaming platforms has already prompted the Union Government to frame rules and guidelines for OTT platforms, in February. While the legality of these rules has been questioned, they are still in force. Hence, something akin to a quasi-judicial body for people aggrieved by government decisions on OTT content may not be far away. That will be a “second coming” for the FCAT or its new avatar, albeit with a broader and more powerful mandate of cultural control. 

Dr Indranil Bhattacharya is film scholar and historian with a special interest in film censorship. The views expressed here are personal.

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