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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, CJI., J.B. PARDIWALA, J.
Nipun Malhotra - Appellant
Versus
Sony Pictures Films India Private Limited & Ors - Respondents
Civil Appeal No. 7230 of 2024 @ Special Leave Petition (C) No. 5239 of 2024
Decided on : 08-07-2024
(A) Cinematograph Act, 1952 – Sections 3 and 5 – Constitution of India – Article 19(1)(a) – Derogatory portrayal of persons with disabilities in movie – A filmmaker’s right to exhibit films is a part of their fundamental right to freedom of speech and expression under Article 19(1)(a), which is subject to reasonable restrictions under Article 19(2)20 – Cinematograph Act is an instance of reasonable restrictions on this right under ‘decency and morality’ rubric of Article 19(2) – Prior certification under the Act has been regarded as a valid restraint on cinematic speech because of its ‘instant appeal’ and ability to stir emotions more deeply than other artistic media – Mere mention of a subject in film is not problematic in itself and a deeper examination of manner in which theme has been handled is required – Media portrayals of persons with disabilities have been historically oppressive – Consistent with understanding that disability was ‘anomalous’ in a normative framework of ability, persons with disabilities were represented in disparaging ways – Problem with such portrayal is that it channels attention on medical aspects of impairment rather than social aspects that actually disable a person, subjecting them to stigma and social exclusion. (Paras 22, 28 and 29)
(B) Rights of Persons with Disabilities Act, 2016 – Section 3 – Constitution of India – Article 19(1)(a) – Derogatory portrayal of persons with disabilities in movie – Equality and non-discrimination are fundamental to all human rights treaties – International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights prohibit discrimination on various grounds, forming basis for Article 5 of CRPD – Human rights approach to disability, reflected in CRPD, represents a significant evolution in international human rights law – It emphasizes need to treat persons with disabilities as rights holders, ensuring their full participation and inclusion in society – As long as overall message of film justifies depiction of disparaging language being used against persons with disabilities, it cannot be subjected to restrictions beyond those placed in Article 19(2) – However, language that disparages persons with disabilities, marginalises them further and supplements disabling barriers in their social participation, without redeeming quality of overall message of such portrayal must be approached with caution – Visual media should strive to depict diverse realities of persons with disabilities, showcasing not only their challenges but also their successes, talents, and contributions to society – This balanced representation can help dispel stereotypes and promote a more inclusive understanding of disability – Decision-making bodies must bear in mind values of participation – Training and sensitization programs should be implemented for individuals involved in creating visual media content, including writers, directors, producers, and actors. (Paras 43, 47 and 74)
Facts of the case:
Present appeal arises from Judgment dated 15 January 2024 of High Court of Delhi by which a petition under Article 226 was dismissed on grounds of maintainability. Appellant is the founder of an organisation that promotes awareness about disabilities, conducts policy research and provides education to underprivileged children. Appellant is a person with arthrogryposis and is aggrieved by the manner in which persons with disabilities have been portrayed in movie titled ‘Aankh Micholi’.
Findings of Court:
Language that disparages persons with disabilities, marginalises them further and supplements disabling barriers in their social participation, without the redeeming quality of overall message of such portrayal must be approached with caution. Such representation is problematic not because it offends subjective feelings but rather, because it impairs objective societal treatment of the affected groups by society. Representation of persons with disabilities must regard objective social context of their representation and not marginalise persons with disability.
Result : Appeal disposed of with directions.
JUDGMENT :
Dhananjaya Y. Chandrachud, CJI.
Contents
| A. FACTUAL BACKGROUND | |
| B. THE HIGH COURT | |
| C. LEGISLATIVE FRAMEWORK | |
| I. The 1991 guidelines | |
| II. Article 19(1)(a) and The Cinematograph Act | |
| D. THE CONTEXT OF SPEECH | |
| I. Disabling imagery: stereotypical portrayal of persons with disabilities in the Media | |
| II. Stereotyping as an anti-thesis to dignity and non-discrimination. | |
| III. The Framework of the RPwD Act, 2016 | |
| IV. International Jurisprudence | |
| 1. Equality and Non-Discrimination | |
| 2. Awareness-raising | |
| V. Indian jurisprudence aligns with the human rights approach | |
| E. SPEECH MUST NOT PREJUDICE THE MARGINALISED AND DISENFRANCHISE THEM FURTHER | |
| F. CAVEAT: DISABILITY HUMOUR V. DISABLING HUMOUR | |
| G. THE PRESENT CASE | |
1. Leave granted.
2. The appellant is the founder of an organisation that promotes awareness about disabilities, conducts policy research and provides education to underprivileged children. The appellant is a person with arthrogryposis and is aggrieved by the manner in which persons with disabilities have been portrayed in the movie titled ‘Aankh Micholi’.
3. The appeal arises from the judgment dated 15 January 2024 of the High Court of Delhi by which a petition under article 226 was dismissed on grounds of maintainability.
A. FACTUAL BACKGROUND
4. The appellant addressed a legal notice to the first respondent, Sony Pictures, on 6 October 2023 raising objections to the trailer of their film. The appellant was particularly aggrieved by the introduction of some of the characters of the film, who were portrayed to suffer from physical impairments. Sony Pictures replied to the notice on 17 October 2023. The movie was released on 3 November 2023 with ‘U’ certification from the Central Board of Film Certification.
5. The appellant claims that the film violates the constitutionally protected rights of persons with disabilities; and the provisions of the Cinematograph Act, 19521[“Cinematograph Act”] and the Rights of Persons with Disabilities Act 20162[“RPwD Act”]. The appellant claims that the Central Board of Film Certification3[“CBFC”/”The Board”] has violated its statutory duty to certify films in accordance with the applicable guidelines.
6. He therefore sought directions:
(ii) Mandating the inclusion of the expert under Section 3 of the Cinematograph Act, 1952;
(iii) Seeking relief against the first respondent, including punitive damages; and
(iv) A public apology from the first respondent.
7. The appellant has highlighted instances in the trailer as well as the film where certain medical conditions have been misrepresented and derogatory terms have been used for characters who are persons with disabilities. These include (a) misrepresentation of the condition of night blindness; and (b) derogatory references to (i) a person with Alzheimer’s as “bhulakkad baap”, (ii) a hearing-impaired person as a “soundproof system”; and (iii) a character with speech impairment as an “atki hui cassette”. The appellant submits that the film portrays a family of persons with various disabilities and revolves around their attempts to conceal their disabilities in a bid to come across as a ‘normal family’. The female lead is a person with nyctalopia or night blindness, while the male lead is a person with hemeralopia, which is an inability to see clearly in bright light. The plot of the film revolves around the two families of the lead characters concealing their impairments, in order to arrange a matrimonial alliance.
8. The appellant has urged that the film’s portrayal is derogatory to persons with disabilities generally and conveys the message that they ought to conceal their impairments in order to deserve a matrimonial partner. The appellant has
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