Source: Supreme Court  

Why in News? 

Recently, the Supreme Court in the matter of Nipun Malhotra v. Sony Pictures Films India Private Ltd. has held that whether a film is depicting “Disability Humour”, or “Disabling Humour” depends upon the overall message of the film. 

What was the Background of the Nipun Malhotra v. Sony Pictures Films India Private Ltd. Case? 

• In this case, a Public Interest Litigation (PIL) was moved to the Delhi High Court claiming that the film “Aank Micholi” produced by SONY Pictures is derogatory for people with disability. 
• The PIL was rejected by the High Court stating that courts generally don’t interfere when the film is already censored by the Central Board of Film Certification (CBFC). 
• It was also stated by the court that too much interference with films would restrain creative freedom. 
• In furtherance to the decision of the High Court the appellant, an activist with locomotor disability moved a PIL to the Supreme Court claiming that the film is derogatory for people with disability. 
• He claimed the producers and directors of the film to make a short film in a way to create awareness about the people with disability. 
• He also claimed that the producers should put emphasis on giving equal opportunity to people with disabilities. 
• It was also contended that the Central Board of Film Certification (CBFC) should have a member with disability so to properly understand the sensitivity of the issue under Section 5 of the Cinematograph Act 1952.   

What were the Court’s Observations? 

• It was observed by the Supreme Court that the message and intent of the film holds a great importance while determining whether the act is ‘Disabling humour’ or ‘Disability humour.’ 
• The court held that the modern social model should be used to determine the film's intent, not the old medical model. 
  • It was held by the court that films may use disparaging or negative language for people with disabilities if the intent of the film is to give a positive message. 
  • If the use of disparaging or negative language for people with disabilities creates more negativity or derogates them and has a negative impact, then it should be taken care of.   
• Further it was held by the court that inclusion of a physically disabled person is not required in the CBFC as it has already been working to oversee adequate guidelines on the permissibility of such content on people with disabilities is in place. 
• The Supreme Court held that the court cannot order producers and directors to make a short film as it would be “compelled speech.” 
• The court also listed the guidelines to be followed by CBFC as: 
  • Words Cultivate Institutional Discrimination- terms such as cripple and spastic have come to acquire devalued meaning in society's perception of people with disabilities. 
  • There should be avoidance of language that 'individualizes impairment and overlooks the disabling social barriers' like 'suffering' or 'victim'. 
  • The Creators should adequately research and check for the accurate representation of a medical condition. Lack of such accuracy may lead to misinformation about disability and entrench stereotypes about persons with such impairment, aggravating the disability. 
  • Visual media should strive to depict the diverse realities of Persons with Disability, showcasing not only their challenges but also their successes and contributions to society. 
  • They should not be lampooned based on myths such as a blind person bumping into objections nor be presented in super cripples on the other extreme. 
  • Decision-making bodies should bear in mind the values of participation, the 'Nothing about Us, without Us' principle is based on the promotion of participation of people with disabilities and equalization of opportunities. 
  • It must be put into practice in constituting statutory committees and inviting expert opinions for assessing the overall message of films and their impact on the dignity of individuals under the Cinematograph Act and Rules. 
  • The Convention of Protection of Rights of people with disabilities also requires consultation with and involvement of people with disabilities for implementation of measures to encourage a portal that is consistent with it- collaboration with disability advocacy groups can ensure a sensitive portrayal and provide valuable insights. 
• Hence, the Court held that the disability humour can be used in the films to curb out the stereotypical humour about the people with disabilities. 

What are the Various Landmark Judgements Cited in this Case? 

• Raj Kapoor v. State (1980): In this case the Supreme Court noted that the certificate, for judging the fitness of a film for public exhibition, also includes consideration of the ingredients of other laws such as the Indian Penal Code, 1860. 
• Bobby Art International v. Om Pal Singh (1996): In this case the Supreme Court held that the motive behind the film was to create awareness about such evil and not to promote it. Mere depiction of something cannot be impermissible. 
• Vikash Kumar v. Union Public Service Commission (2021): The Supreme Court underlined the positive obligation of both State and private parties to provide support to persons with disabilities to facilitate their full and effective participation in society. 

What are the Provisions of the Cinematograph Act, 1952 Referred to in this Case? 

• Section 5 deals with Advisory Panel. It states that- 
  For the purpose of enabling the Board to efficiently discharge its functions under this Act, the Central Government may establish at such regional centres as it thinks fit, advisory panels each of which shall consist of such number  persons, being persons qualified in the opinion of the Central Government to judge the effect of films on the public, as the Central Government may think fit to appoint thereto. 
  • At each regional Centre there shall be as many regional officers as the Central Government may think fit to appoint, and rules made in this behalf may provide for the association of regional officers in the examination of films. 
  • The Board may consult in such a manner as may be prescribed any advisory panel in respect of any film for which an application for a certificate has been made. 
  • It shall be the duty of every such advisory panel whether acting as a body or in committees as may be provided in the rules made in this behalf to examine the film and to make such recommendations to the Board as it thinks fit. 
  • The members of the advisory panel shall not be entitled to any salary but shall receive such fees or allowances as may be prescribed. 

What are the Provisions of the Rights of the Persons with Disabilities Act 2016 Referred to in this Case? 

Section 3 of this Act: 

• Section 3 deals with equality and nondiscrimination. It states that the  
  • The appropriate Government shall ensure that persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others.  
  • The appropriate Government shall take steps to utilize the capacity of persons with disabilities by providing an appropriate environment.  
  • No person with disability shall be discriminated against on the grounds of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim.  
  • No person shall be deprived of his or her personal liberty only on the grounds of disability.  
  • The appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities. 

Overview of The Rights of Persons with Disabilities Act, 2016: 

• This Act is governed on the modern social model and the Act embodies principles of dignity, individual autonomy (freedom to make personal choices), non-discrimination, and effective participation. The CRPD asserts that disability arises from the interaction between impairments and social attitudes, creating barriers to full and equal participation in society. 
• This Act represents shift from viewing disability through a charity lens to a human rights perspective. Its core aim is to empower people with disabilities by upholding their inherent dignity and autonomy. 
• The act ensures equality of opportunity, accessibility, gender equality, and the recognition of the evolving capacities of children with disabilities, ensuring their right to maintain their identities. 

What is the Difference Between Disability Humour & Disabling Humour? 

What is Compelled Speech? 

About: 

• Compelled speech is prohibited as per the Constitution of India, 1950 (COI) as it is violative of the fundamental right guaranteed under the constitution.  
• Compelled speech specifically is covered under Article 19(1) (a) of the COI, where no one can be compelled to say and speak anything without his will. 

Case Law: 

• In the case of Bijoe Emmanuel v. State of Kerala (1986), popularly known as the ‘National Anthem’ case the Supreme Court held that not singing the National Anthem while it is recited is not an offence under the Prevention of Insults to National Honour Act, 1971, if the accused is not disrespecting it and no one can be compelled to sing and speak any words which is involuntary.