In the case of Nipun Malhotra v. Sony Pictures Films India Private Limited (Civil Appeal No. 7230 of 2024), the Supreme Court laid down a framework and guidelines for portraying persons with disabilities in cinema and visual media aligning with anti-discrimination and dignity affirming objectives of Indian Constitution and Rights of Persons with Disabilities Act, 2016.
Background
The appellant in the case was the founder of an organisation that promotes awareness about disabilities, conducts policy research and provides education to underprivileged children. The appellant was a person with arthrogryposis and was aggrieved by the manner in which persons with disabilities had been portrayed in the movie titled ‘Aankh Micholi’ distributed by Sony Pictures Films India.
The appellant had approached the High Court of Delhi which then delivered a judgement on 15 January 2024 via which the petition of the appellant made under Article 226 was dismissed on grounds of maintainability.
Facts
On 6th October 2023, the appellant had sent a legal notice to Sony Pictures objecting to their film trailer, which portrayed characters with physical impairments. He was particularly aggrieved by the introduction of some of the characters of the film, who were portrayed to suffer from physical impairments.
Sony Pictures responded on 17th October 2023, and in their reply, asserted that the film’s message was about overcoming disability challenges, and the use of certain terms and their portrayal was protected by freedom of speech and expression, depicting the characters’ agency and skills without being derogatory or stereotypical. The movie was released on 3 November 2023 with a ‘U’ certification from the Central Board of Film Certification (CBFC).
The appellant approached the High Court of Delhi which dismissed the petition against Sony Pictures, noting that the appellant did not dispute Sony’s clarification, about the overall message of the film being around overcoming the disability. Certified for unrestricted public exhibition by the CBFC, the film’s positive message about overcoming disabilities was emphasized.
The appellant did not pursue further grievances after receiving the reply from Sony Pictures until filing the petition. There was no legal basis for the reliefs sought by the appellant. Underlining that the film was granted certification for unrestricted public exhibition by CBFC, the High Court held that the reliefs sought by the appellant were non-maintainable.
Allegations
The appellant claimed the film violated the rights of persons with disabilities and the provisions of the Cinematograph Act, 1952, and the Rights of Persons with Disabilities Act, 2016 (“RPwD Act”). He also claimed that CBFC violated its statutory duty to certify films in accordance with applicable guidelines. The appellant stated that the Guidelines for Certification of Films for Public Exhibition, 1991 (“1991 Guidelines”), framed under Section 5B of the Cinematograph Act, are interpreted as broad standards and require (inter alia) that the Board must ensure that scenes showing abuse of physically or mentally handicapped persons are not presented needlessly.
The appellant highlighted instances of misrepresentation and derogatory terms used for characters with disabilities in the trailer and film. These included incorrect portrayal of night blindness and offensive references to conditions like Alzheimer’s, hearing impairment, and speech impairment. Specifically, the appellant highlighted instances where the film was referring to a person with Alzheimer’s as “bhulakkad baap”, a hearing-impaired person as a “soundproof system”, and a character with a speech impairment as an “atki hui cassette.” The appellant argued that the film’s portrayal was derogatory, reinforced stereotypes, and failed to promote empathy or accurate representations of disabilities.
The appellant sought directions for the inclusion of a disability expert on the CBFC and its advisory panel, punitive damages against Sony Pictures, and a public apology.
Analysis by the Court
The Court outlined tests to determine challenges to portrayals in films. The “aversion defense” permits the portrayal of social evils, like sexual violence or communal tension, if meant to arouse revulsion rather than glorify them. It was noted that while analysing a film the overall message of the film should be considered, and not just standalone scenes.[i]
It was noted that the certification of the film was not contested and the appellant did not challenge Sony Pictures’ reply. Instead, the appellant sought framing of guidelines and recommendations for creators to follow when dealing with sensitive subjects like the rights of persons with disabilities in visual media, as well as editing certain parts of the film.
Freedom of Speech – Article 19 (1) (a)
A filmmaker’s right to exhibit films is a part of their fundamental right to freedom of speech and expression.[ii] However, the Cinematograph Act is a reasonable restriction to freedom of speech under the decency and morality rubric of Article 19(2).
The Court observed that in KA Abbas v. Union of India,[iii] the Supreme Court had underlined that restraints on cinematic expression have to be extremely narrow. Additionally, the Court will be extremely slow to restrain creative works, once the Board had approved exhibition. The Supreme Court there had said that the social impact of the film is judged from the perspective of an ordinary person of reasonable intelligence and not a hypersensitive person, and the film must be judged by its overall message and not from isolated depictions of social evils.
The Court observed that derogatory speech and stereotypes often target marginalized groups, and the context of speech is crucial in deciding the validity of restraints on it. The Court also noted that media portrayals of persons with disabilities have historically been oppressive, depicting them as evil, pitiable, violent, curiosities, burdens, sexually abnormal, and incapable of community participation. Such portrayals lead to stigma, social exclusion, and systemic inequalities.
Laws on Disability
The Supreme Court prior to its analysis took reference of various laws and jurisprudence.
The general comment on Article 5 of the UN Convention on the Rights of Persons with Disabilities (CRPD) states that state parties should take proactive measures to address discriminatory portrayals of persons with disabilities in the media. Such portrayals perpetuate harmful stereotypes. States must therefore implement measures to encourage portraying persons with disabilities in a manner consistent with the CRPD.
The RPwD Act prohibited discrimination against persons with disabilities in various spheres, including employment, education, access to public places, and provision of goods and services. It was established long after the 1991 Guidelines, which guidelines mandated the Board to protect against needlessly abusive and ridiculing scenes about persons with disabilities. These 1991 Guidelines aim to create an environment conducive to inclusive and substantive equality, considering the historically oppressive social treatment of disabled persons.
It was held that the granting of a ‘U’ certificate implies that the film complies with these guidelines and statutes ensuring it does not portray persons with disabilities needlessly in a negative manner.
Distinguishment between Disability Humor and Disabling Humor
A few important observations were made by the Court regarding portrayal of persons with disabilities alongside humor:
It was noted that humour is employed by persons with disabilities as a means of social engagement, dispelling myths, and challenging stereotypes. This type of “disability humour” creates an equal space and helps reclaim public discourse from dominant ableist narratives.
However, it is important to distinguish between “disabling humour” and “disability humour”. While ‘disabling humour’ demeans and disparages persons with disability, ‘disability humour’ challenges conventional wisdom about disability. While ‘disability humour’ attempts to better understand and explain disability, ‘disabling humour’ denigrates it. It was noted that the two cannot be equated in their impact on dignity and on stereotypes about persons with disabilities
Judgement
The appellant claimed that the second respondent’s freedom of speech and expression under Article 19, had infringed upon their (person with disability’s) rights under Articles 14 (equality), 15 (non-discrimination), and 21 (right to life and liberty) by reinforcing stereotypes in a film.
The Supreme Court observed that the freedom under Article 19(1)(a) i.e., creative freedom of the filmmaker cannot include the freedom to lampoon, stereotype, misrepresent or disparage those already marginalised. If a work’s overall message infringes on the rights of persons with disabilities, it is not protected speech. However, if a stereotypical portrayal is justified by the film’s overall message, the filmmaker’s right must be balanced against those who are portrayed.
On the request of the appellant to beep certain parts of the film, the Court held that the Board determines permissible portrayals of social ills, and that it ensures adherence to the RPwD Act and the 1991 Guidelines. Therefore, it was not recommended to alter the film, as the Board had already given a certification and a disclaimer was already present.
The recommendation of the appellant that Sony Pictures make an awareness film according to Section 7 (d) of the RPwD Act was rejected by the Court. The appeal to include subject matter experts to the Board and advisory panels was rejected, as this aspect was sufficiently covered by the Cinematograph Act and the certification Rules of 1983 and 2024, The Rules provided for consultation with subject matter experts wherever necessary. The interference of the Court was not required on this aspect. It is beyond the remit of constitutional courts to specify qualifications for members of expert bodies, or direct such requirements to be legislatively included. The Court cannot read additional requirements into unambiguous provisions.[iv]
However, considering the issue involved fundamental rights of persons with disabilities, the Supreme Court decided to lay down a framework for the portrayal of persons with disabilities in visual media:
Accordingly, the appeal was disposed of.
Conclusion
The guidelines are a welcome development, highlighting their grave importance. However, compliance will pose significant challenges. Determining which words or sequences contribute to a negative self-image of persons with disability is not always black and white. The production houses and content creators will have to constantly evaluate whether a statement falls under “disability humor” or “disabling humor.”
There are also other challenges. It is unclear whether non-compliance with these guidelines are binding and would constitute contempt of court if not adhered to. Are these binding directives or merely recommendations? If binding, enforcement could be questionable since there is no exhaustive list defining what constitutes ‘disabling humor’ or ‘disability humor’, as referenced by the Court. The context of words can also vary significantly depending on whether a scene is viewed in full or as a short clip on platforms such as Reels. There are a lot of factors at play, therefore, never really allowing creators to judge if the scene meets the guidelines, or if it can be misused to infringe on the rights of persons with disability. But by reiterating the principle that the films have to be analysed as a whole keeping the overall message in mind, significant protection was given to creators who create such films in good faith.
This order follows a recent observation made by the Delhi High Court in Akshat Baldwa v. Yash Raj Films,[v] regarding the rights of persons with disability. Justice Pratibha M. Singh observed accessibility is “crucial and is enforceable as a legal right” and even private parties have to ensure that “reasonable accommodation” measures are taken in order to enable greater accessibility for the hearing and visually impaired persons. The Court urged the Centre to expedite the notification of guidelines for making films accessible to individuals with hearing and visual impairments, setting a deadline of July 15. The Centre however asked for an extension until 1st August for notification of the guidelines.
The Ministry of Information & Broadcasting (MIB) had on 15th March 2024 introduced guidelines aimed at enhancing accessibility standards for persons with hearing and visual impairments in the public exhibition of feature films in cinema theatres.
This article was first published on IPRMENTLAW