The ‘Emergency’ row: Sidestepping the law and unwarranted judicial intervention

Voltaire’s famous words come to mind as I write this article: “I disapprove of what you say, but I will defend to death your right to say it.” These words aptly express my thoughts on the entire episode concerning Emergency, a film starring actor Kangana Ranaut.

The movie, based on the life of former Prime Minister of India Indira Gandhi, particularly focuses on the infamous Emergency imposed by her government in the years 1975-1977. As has become the norm with films touching on sensitive political or religious issues, Emergency is mired in legal challenges even before its release. Multiple petitions have been filed in various High Courts seeking either cancellation of its certification, removal of scenes from the trailer and the movie, or a review by a curated panel of experts. As a result, the film’s release date has been postponed indefinitely.

To provide some background, the makers of the movie applied for certification on July 8, 2024 and on August 6, the Examination Committee unanimously recommended the grant of U/A certificate, subject to certain modifications. Upon incorporating these changes, the filmmakers resubmitted the movie, and an online certificate was granted on August 29. Subsequently, a Public Interest Litigation (PIL) was filed by Sikh groups before the Punjab and Haryana High Court challenging the grant of certificate on the ground of the portrayal of Sikhs in the film. These groups also submitted representations to the Central Board of Film Certification (CBFC/Board). In response to the petition and the representations, the Board revoked the certificate.

Subsequently, another petition was filed before the Madhya Pradesh High Court, alleging that the trailer of the movie violates the Cinematograph Act, 1952.

Both High Courts issued interesting orders. The Punjab and Haryana High Court noted that the petitioners have the remedy of approaching the Revising Committee of the CBFC and submitting their objections. Similarly, the Madhya Pradesh High Court directed the Board to consider the representations of the petitioners.

The actions of the Board and the High Court are contrary to the text and spirit of the Cinematograph Act and Rules. First, the Board’s decision to withdraw the granted certificate, instead of referring the matter to the Revising Committee, is questionable. Second, the Court’s directions that the petitioners have the remedy of approaching the Revising Committee and that the Board must consider their objections, are also suspect.

Under the Cinematograph Act and Rules, the procedure for certification of a film is as follows: Once a request for certification is received, the Board appoints an Examining Committee to assesses whether the film complies with the law. If the Committee issues a favourable recommendation, a suitable certificate is issued. However, under Rule 24, the film may be referred to a Revising Committee on the order of the Chairman or on the request of the applicant, for another round of review. If the Committee recommends the grant of certificate, the Board can issue the certificate. However, the Chairman has the power to constitute another Revising Committee or urge the Board to examine the film again, but any decision taken thereafter will be final.

It should be noted that there is no provision in the law that allows the Board to issue a certificate electronically and then withhold it later. The law empowers only the Central government to suspend and revoke, or decertify a film (Section 5E and 6). Suspension or revocation can occur only if the film is being exhibited in contravention of the law. Therefore, the film must be exhibited first, before these powers can be exercised. Similarly, a film cannot be decertified unless the applicant has been given an opportunity to be heard.

It seems unlikely that either of these powers were exercised in this case, given that the film has not yet been exhibited and the certification was refused within two days, making it impossible to afford a reasonable opportunity to the applicant. Therefore, the Board’s decision to withdraw the certificate is legally suspect, as it lacks statutory basis.

Even if we assume that the Board has the power to withdraw the certificate, the proper course of action would be to exercise its suo motu powers, and refer the movie to a Revising Committee. The text and spirit of the Act indicates that the sole authority over the certification of the movie rests with the Committees and the Board, and no other person. However, the High Courts sidestepped the law here as well.

Both the High Courts directed the Board to consider the representations made by the petitioners while reviewing the film. Further, the Punjab and Haryana High Court noted that the petitioners have the remedy of appearing before the Revising Committee. These observations are contrary to the Act and Rules.

First, there is no provision in the Act or Rules that allows a third party to submit their views while a film is being certified. Second, the only entities involved in the process of certification are the Board and the applicant. A third party has no right to interfere with this process. This question came up in the case of Ramesh v. Union of India, where the Supreme Court observed that only persons aggrieved by refusal of a certificate have remedies under the Act. Under existing law, third parties have the right to interfere only after a certificate has been granted, not before. By allowing the petitioners to submit representations to the Board and suggesting that they could appear before the Revising Committee, the Court effectively modifies the law, permitting third-party interference during the certification process.

Throughout the years, the courts have reiterated that the final decision over certification rests with the Board, which must ensure that the film complies with the law. They have also cautioned against allowing third parties to drag filmmakers into litigation once the film has been cleared for certification. In the present case, both the actions of the Board and the courts are suspect, and risk encouraging similar litigation in the future.

The Board’s sudden decision to withhold a duly granted certificate suggests it was guided by external factors and not the law. Similarly, the Court’s decision to enable third parties to interfere with the certification process effectively amounts to amendment of the law.

Swapnil Tripathi is an Advocate and a DPhil (in Law) Student, University of Oxford. He tweets at S_Tripathi07.