The Movie
A movie, Aankh Micholi, the petitioner-appellant claimed, violates constitutionally protected rights of persons with disabilities, the Cinematograph act, 1952, and the Rights of persons with Disabilities Act, 2016. The petitioner-appellant claimed that the Central Board of Film Certification has failed in its statutory duty to certify the film in accordance with the applicable guidelines.
Delhi High Court’s judgement
The petitioner first approached the Delhi High Court against the film and the Central Board for Film Certification. He sought two directions from the Court:
- The petitioner sought to include an expert on the subject matter of the Rights of Persons with Disabilities Act, 2016 (‘RPWD Act’) within the Board of Film Certification under Section 3 of the Cinematograph Act, 1952 (‘Act of 1952’) and advisory panel constituted under Section 5 of said Act.
- The Petitioner also sought relief(s) against Sony Pictures including the relief of punitive damages to any charitable organization that support PwDs and a public apology.
Petitioner’s arguments before the Delhi High Court
The petitioner’s argument was that the movie had portrayals of persons with disabilities as stooge and anomalous to common people, and that it reinforces negative stereotypes. It was argued that the movie violates Section 3(3) of the RPWD Act which states that no person shall be deprived of his or her personal liberty only on the ground of disability.
Respondent’s arguments before the Delhi High Court
Sony Pictures stated that when petitioners served a notice to them, they clarified the stance on the movie and had stated that the overall message of the movie and the core storyline is centred around overcoming disability.
Delhi High Court’s reasoning
The Court observed that the petitioner’s notice to Sony was based on the movie’s trailer and not the movie itself. It noted that after the reply to the notice by petitioners, which specifically refuted all the allegations, there was no follow-up from the petitioners until the filing of the petition. The court also noted that the petitioner did not specifically refute the claim made by Sony Pictures that the overall film is centred around overcoming disability and that the movie depicts the strength of characters therein who are suffering from disabilities.
The Delhi High Court also stated that since there are already Central Government guidelines for CBFC for the purpose of sanctioning of the film, there are no grounds for the relief of fresh or new guidelines to be given to the CBFC. Saying this, the Court dismissed the petition.
Thereafter, the petitioner appealed to the Supreme Court.
Supreme Court judgement
Relief sought by the appellant:
- Beeping out parts of the film: The appellant sought to have certain parts of the film beeped out. The Court declined, noting that a disclaimer was sufficient.
- Producing a separate awareness film: The appellant requested Sony Pictures be directed to create an awareness film. The Court declined, stating that Section 7(1)(d) applies to the government.
- Inclusion of subject matter experts: The appellant sought more subject matter experts in the film certification process. The Court held that existing rules are adequate and no further intervention was needed.
Validating restraints on speech via differentiation between disabling and disability humour
The Supreme Court opined that the right to exhibit films is part of filmmakers’ fundamental right to freedom of speech and expression under Article 19(1)(a), which is subject to reasonable restriction under Article 19(2). The Cinematograph Act is an instance of reasonable restriction on the Right under the ‘decency and morality’ rubric of Article 19(2). It noted that restraints on cinematic speech must be narrowly construed because of their potential to imperil the significant value of free speech, which is a constitutionally protected value.
The judgement authored by Chief Justice DY Chandrachud took the opportunity to discuss the aspect of hate speech too. CJI, while discussing the importance of context in understanding the nature of an expression, differentiated between ‘disabling humour’ that demeans and disparages persons with disabilities from ‘disability humour’ that challenges conventional wisdom on disability. Quoting Professor Jeremy Waldron, author of the book ‘The Harm in Hate Speech,’ the CJI opined that context is of paramount importance in deciding the validity of restraints on speech. The judgement states as follows, in this context:
“Derogatory speech and stereotypes usually target the marginalised. The impact of the speech on human dignity; the identity of the speaker and the target; and the linguistic connotations of the speech may be considered in deciding issues around stereotypical speech. The standard of the ‘overall message’ of a film, in some ways, furthers this emphasis on the importance of context and manner of portrayal in visual media.”
Emphasis on social aspects rather than medical aspects
The CJI noted that consistent and recurring negative portrayals of PwDs result in channelling of attention on the medical aspects of impairment rather than the social aspects that actually disable a person. The judgement stated as follows:
“Such disabling imagery formed “the bedrock on which the attitudes towards, assumptions about, and expectations of disabled persons are based.” Such portrayal perpetuated stigmatizing views about disability as a vulnerability or a ‘suffering.’ Recurrent negative portrayals as illustrated above and frequent use of patronizing and offensive language such as “victim,” “differently abled,” or “unfortunate” to describe individuals continue to perpetuate negative attitudes towards persons with disabilities.”
Discussion on national and international jurisprudence
After discussing the national legislation on Persons with Disabilities and the International Jurisprudence under the United Nations’ Universal Declaration of Human Rights, 1948, the Convention on the Rights of Persons with Disabilities, 2008, etc., the court acknowledged the importance of involving and closely consulting persons with disabilities through their organizations in the development and implementation of awareness campaigns.
The Supreme Court relied on Vikash Kumar vs. Union Public Service Commission[1] to state that the government should enable the exercise of rights, including the right to equality and dignity; and that both the state and private parties have a positive obligation to provide support to persons with disabilities to facilitate their full and effective participation in society.
The decision
The Supreme Court stated that the freedom under Article 19(1)(a), that is the creative freedom of the filmmaker, cannot include the freedom to lampoon, stereotype, misrepresent, or disparage those already marginalized. However, it added, in appropriate cases, if stereotypical/disparaging portrayal is justified by the overall message of the film, the filmmaker’s right to retain such portrayal will have to be balanced against the fundamental and statutory rights of those portrayed.
Against the specific reliefs prayed for by the appellant, the SC stated that it was not inclined to recommend beeping out parts of the film considering the inclusion of a disclaimer in the film.
On producing a separate awareness film
The petitioner prayed that the SC direct Sony Pictures to make an awareness film under Section 7(1)(d) of the RwPD act. The SC declined to do so since Section 7(1)(d) is directed at the government i.e., the appropriate government is directed to take measures to protect PwDs, including the creation of awareness films.
On inclusion of subject matter expert
The Supreme Court stated that the inclusion of subject matter experts in the Board and advisory panels is adequately addressed by the Cinematograph Act and the certification Rules of 1983 and 2024, which do not require further interference. Under the 1983 and 2024 Rules, the Examining Committee may include women and consult experts. The Court highlighted that existing committees are competent to assess films while considering other relevant laws and expert opinions. Additionally, the 2024 Rules enhance the role of subject matter experts, recognizing that their consultations can significantly inform the Board’s perspective. The Court mentioned that it cannot impose additional requirements or guidelines beyond the current legislative provisions.
The guidelines
The Court took the opportunity to provide a framework for the portrayal of persons with disabilities in visual media that aligns with the anti-discrimination and dignity-affirming objectives of the Constitution as well as the RwPD Act. The Court issued the following guidelines:
- Inclusive Language: The language used should be inclusive and not alienating. Terms like “cripple” and “spastic” should be avoided as they contribute to negative perceptions and discriminatory attitudes.
- Accurate Representation: Creators must strive for accurate representation of medical conditions to avoid perpetuating misinformation and stereotypes.
- Multifaceted Portrayal: Visual media should depict the diverse realities of persons with disabilities, highlighting their challenges, successes, talents, and contributions to society.
- Avoiding Stereotypes: Persons with disabilities should not be lampooned or depicted as having extraordinary heroic abilities that merit dignified treatment.
- Participation Principle: Decision-making bodies should include persons with disabilities in statutory committees and consult them for assessing the overall message and impact of films.
- Collaboration with Advocacy Groups: Collaboration with disability advocacy groups is essential for respectful and accurate portrayals, ensuring alignment with the lived experiences of persons with disabilities.
- Training and Sensitization: Implementing training and sensitization programs for individuals involved in creating visual media content is crucial to foster a deeper understanding and commitment to responsible portrayal.
Conclusion
The Rights of Persons with Disabilities (RwPD) Act of 2016 and the Supreme Court have taken the human rights approach to the rights of persons with disabilities. It sets a precedent for respectful and accurate representation of PwDs in visual media, reinforcing the importance of context, dignity, and collaboration in combating stereotypes and promoting inclusivity. Despite exercising restraint on itself over limiting the freedom of speech and expression, the Court actively fulfilled its role in protecting the constitutional rights of PwDs by laying down guidelines for better portrayal of people with disabilities.
(The author is part of CJP’s legal research team)
[1] Civil Appeal No. 273 of 2021
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