– Arushi Singh
Nipun Malhotra v. Sony Pictures Films India Private Limited Ors.
Civil Appeal No. 7230 of 2024
In a landmark Judgment, the Supreme Court has laid down the guidelines for the creators to follow on the portrayal of persons with disabilities (PwD) in the visual media. In an appeal filed by appellant Nipun Malhotra, against the representation of PwDs in the movie Aankh Micholi, the division bench led by Chief Justice D Y Chandrachud has developed the guidelines by closely examining the existing legal framework and the international jurisprudence.
It is the case of the appellant that the film reinforces the stereotypes against PwDs and portrays them in a derogatory light. The appeal emanated after the appellant’s petition was dismissed by the High Court. In his petiton, the appellant claimed that the Central Board of Film Certification (CBFC) has violated its statutory duty to certify films in accordance with the applicable guidelines. The High Court dismissed the petition citing that the film was granted certification for unrestricted public exhibition by CBFC and hence the relief sough by the appellant was non – maintainable.
Certification of films and framing of guidelines
After carefully scrutinising the structure of film certification under The Cinematograph Act 1952, the Cinematograph (Certification) Rules 19834 and the Guidelines for Certification of Films for Public Exhibition 1991, the court noted that the appellant had not contested the certification of the film in question but had sought framing of the guidelines for the filmmakers to follow. The court also noted that the High Court did not engage with this aspect of the discussion, thus limiting its inquiry to the existence of guidelines under Section 5B(2) of the Act of 1952.
Notably, the Supreme Court took a step further while deciding the appeal and considered the impact of the Rights of Persons with Disability Act (RPwD), 2016 on the framework of certification which predates the Act of 2016. During its analysis of the Act of 2016, the court carefully evaluated the medical and social models of disability, with a particular emphasis on the human rights approach that has been affirmed by the United Nations Convention on the Rights of Persons with Disability (UNCRPD). The UNCRPD embodies the principles of autonomy, dignity and non-discrimination which have been endorsed in various judgments of the Supreme Court over the years. The court especially highlighted Article 5 and 8 of the Convention on the discriminatory depiction of PwDs in media, affirming India’s commitment to the Convention.
Freedom of Expression
On the defendant’s claim of right to freedom of expression, the court stated in no uncertain terms that the freedom guaranteed under Article 19(1) of the Constitution is a significant right. Citing the case of Indibly Creative, the court remarked that narratives on social issues must allow the participation of diverse voices. At the same time, any discourse that promotes marginalisation of any group shall be subject to the reasonable restrictions under Article 19(2).
Disabling humour v. Disability Humour
In the judgment, the court underlined the difference between disabling humour and disability humour. Historically, the depiction of PwDs has been oppressive and discriminatory, showing them in an inferior light. As jokes are made at the expense of PwDs, it perpetuates ableism and brings the medical model in the spotlight. On the other hand, the court commented that humour is also increasingly being used to call out the stereotypes and prejudices that PwDs are often subject to. This latter kind of ‘disability humour’ can be empowering.
Comprehensively laying down the discourse on the showcasing of PwDs in films and media, the court laid down a nine point guideline, that the creators shall have to look into to prevent any discrimination or disenfranchisement of PwDs onscreen.
The judgment marks a watershed moment for an entire class of people who have often found themselves on either ends of the spectrum of inspiration and sympathy. PwDs have been chronicled in the films and media as objects of pity or have been attributed aspects of fatalism to their personalities. The judgment, with its thorough construction, ensures that PwDs are finally acknowledged as integral members of society, ending their long-standing marginalization on its peripheries.