[Reader-list] Disciplining Documentary

[Sanjay Kak]

Disciplining Documentary / Himal South Asia

http://www.himalmag.com/Cinematograph-Act-Amendments-stifling-the-documentary_fnw57.html

by Siddharth Narrain

The proposals to amend the 58-year-old Cinematograph Act reflect an
out-of-touch view on  documentary filmmaking and distribution and
contain troubling implications for artistic freedom and critical
speech.

The period since this anachronistic legislation was passed has seen
rapid changes in technology, law, and attitudes of cinema audiences.
One of the most visible changes has been the availability and
circulation of films – both fiction and documentary – through the
Internet, local video networks, pirate markets, and MMS technology.
Documentary films, which while not enjoying the kind of mass patronage
that Bollywood films recieve in India, are circulated widely through
these new technologies and through film festivals, and are becoming
increasingly popular in smaller Indian cities and towns.

Documentary filmmakers, many of who continue to question 'dominant'
narratives of national security, heterosexism, patriarchy, religious
fundamentalism, caste hegemony, and the adverse effects of neoliberal
economic policy, often face the brunt of the censorship regime.
Well-known documentary filmmakers, such as National award winner Anand
Patwardhan and acclaimed director Rakesh Sharma, have had to fight
long legal battles before they received censor certificates. In 2004,
the Mumbai International Film Festival for Shorts, Documentaries and
Animation Films (MIFF) organisers' refusal to screen ‘political
films’, including Sharma’s film, Final Solution (on the 2002 Gujarat
pogrom), led to the formation of a loose network of over 200
filmmakers and other committed to free speech. This network, named
Vikalp, organised a parallel film festival to protest the exclusion of
‘political films’ from the official MIFF.

Under the Indian Constitutional scheme, the right to free speech has
been circumscribed by limitations based on public morality, public
order, national security, and forms of expression that would lead to
contempt of court, defamation or incitement to an offence, or affect
friendly relations with other states. Cinema is one of two forms of
media that faces pre-censorship in India (the other being theatre). In
the 1970 K.A. Abbas case, the Supreme Court turned down a challenge to
the system of pre-censorship of cinema. The court stated that
pre-censorship was necessary as the medium of film had to be treated
differently from other forms of art and expression. 'The art of the
cameraman with trick photography, vista vision and three-dimensional
representation thrown in has made the cinema picture more true to life
than even the theatre or indeed any other from of representative art.'

Recent judgements show, however, that judges are increasingly becoming
more liberal in their interpretation of the censorship law. These
decisions include the Delhi High Court’s decision in the Naz
Foundation decision (the case that decriminalised homosexuality in
India) and M.F. Husain case (related to cases filed to harass the
painter for his depiction of a nude Bharat Mata), and the Supreme
Court’s decision in the Khushboo case (where Tamil actress Khushboo
was slapped with defamation cases for stating that Tamil women have
pre-marital sex).

Given these changes in the content and technological forms of media in
India, documentary filmmakers have good reason to be disappointed by
the proposed Cinematograph Act. The Act does not make a distinction
between documentary and non-documentary films, a distinction that many
documentary film makers feel is necessary, given than documentary
films often have niche audiences, which defeats the (warped) logic of
censoring films because they titillate or influence ‘the masses’. One
possible way of doing this is to create a separate category of film
called ‘documentary’ which can then be treated differently, and
perhaps exempt from the possibility of being refused a censor
certificate. This could work along the lines of the current category
‘S’ that is used for scientific/medical films.

The proposed Bill makes no distinction between ‘public’ and ‘private’
exhibitions and does not attempt to define what constitutes a ‘public’
or ‘private’ exhibition. Instead, the proposed Bill has put in place
such a broad definition of ‘exhibition’, that it will impossible to
enforce given the ubiquitous nature of the visual medium today and the
manner in which such technologies have become personalised. Such a
broad definition of exhibition includes educational institutions,
independent cultural centres, exhibitions meant for scientific
purposes etc. Further, this definition of ‘exhibition’ goes against
the Indian Supreme Court’s interpretation of the term, which is much
more restrictive.

While defining a ‘place’ of exhibition regulated under this
legislation, the Bill defines the term too broadly. As the definition
stands documentary film screenings that are held commonly in film
clubs, as part of film festivals, or even in local neighbourhoods,
would come under the purview of the Cinematograph Act. What the Bill
should be doing is to restrict the definition of place only to those
places whose primary purpose is the exhibition of cinematograph films
with specific exceptions in case of educational institutions, archives
and libraries.

Another major problem that the proposed legislation does not deal with
is the constitution of the Board of Censors. There are no
qualifications laid down for this post, with no process of consulting
the public to decide who will be on this body.  Further, even though
the proposed legislation suggests a reworking of the categories of
certification to include categories of films that can be seen by
children above 12 (12+ certificate) and above 15 (15+ certificate),
the Board continues to have the power to refuse film certification.
There needs to be transparency in the process by which members of the
advisory panel are selected. Details related to the qualifications and
rationale for choosing these members should be made available to the
public. It cannot be left to the whims and fancy of the Central
Government. While the draft law, does make provisions for advisory
panels of qualified persons who will assist the censor board, there
has to be a mechanism to ensure the accountability of the members of
the Advisory Panels.

Currently, the draft Bill gives the Central Government the power to
suspend any certificate issued by the CBFC, by taking recourse to
Section 9 (1) of this Bill. There is no reason for the Central
Government to enjoy such power over the decision of a validly
constituted statutory authority. The occasions on which a film’s
certificate can be suspended should be explicitly listed out. Further
section 15 of the Act gives unfettered power to the Ministry to censor
or even ‘uncertify’ a film. There is no remedy available to a
filmmaker in such a case. This section undoes the structure of the
entire Cinematograph Act.

Filmmakers – especially documentary filmmakers – have been arguing
that the system of pre-censorship of films in India should be done
away with and the only function of the CBFC should be to certify
films. Ironically, while the nomenclature of the Censor Board itself
was changed through an amendment of the Cinematograph Act in 1982 from
the Central Board of Film Censorship to the Central Board of Film
Certification, this has not been reflected in changes to the
substantive powers and functions of the CBFC.

The draft law continues to replicate the exceptions to free speech as
laid down in the constitution. Terms like ‘security of the state’
‘decency’ and ‘morality’ and ‘public order’ are too vague, broad and
prone to misuse. While this is legally permissible, film-makers and
academics have argued that the current bill does not move away from
the logic of the Cinematograph Act, 1952, which is clearly restrictive
in nature based on a deep suspicion of the visual medium and grounded
in colonial history.

It is absolutely vital that the Ministry initiate wide-ranging
consultations with stakeholders like documentary filmmakers on the
nature of changes that are required to make the Act contemporary.
Unless the Ministry carries out a comprehensive and consultative
process of redrafting the current Cinematograph Act to make it
contemporary and in tune with changed times, India will continue to
have a modified legislation that will continue to be restrictive and
completely out of tune with contemporary realities.

Siddharth Narrain is with the Alternative Law Forum in Bengaluru.