Supreme Court: In an appeal against Delhi High Court’s decision, whereby the appellant’s challenge to the egregious portrayal of characters with disabilities in the film ‘Aankh Micholi’, was dismissed, the appellant sought framing of guidelines for content creators, the Division Bench of Dr. DY Chandrachud, CJI* and JB Pardiwala, J, refused to accept certain recommendations of the appellant. However, the Court laid down the directions to be followed while dealing with rights of persons with disabilities and their representation in the visual media.
Background
The appellant, founder of an organisation that promotes awareness about disabilities, was aggrieved by the manner in which persons with disabilities were portrayed in the movie titled ‘Aankh Micholi’. A legal notice was served to Sony Pictures Films India Private Limited, 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. The movie was released on 03-11-2023 with ‘U’ certification from the Central Board of Film Certification (‘CBFC’). The appellant claims that the film violates the constitutionally protected rights of persons with disabilities; and the provisions of the (‘Cinematograph Act’) and the (‘RPwD Act’).
The appellant was aggrieved that certain medical conditions were misrepresented, and derogatory terms were used for characters who are persons with disabilities, including, misrepresentation of the condition of night blindness. It was also alleged that derogatory references were used, for a person with Alzheimer’s as “bhulakkad baap”; a hearing-impaired person as a “soundproof system”; and a character with speech impairment as an “atki hui cassette”. The Sony Pictures, in their reply, stated that the overall message of the film was one of ‘overcoming the challenge of disability’ and sought to depict the struggles faced by persons with disabilities and their families and in an effort to overcome them. It was also stated that the introduction of the characters in the trailer was protected by the freedom of speech and expression; the film does not pity or look down upon the characters but depicts their agency and skills; and the depiction is neither derogatory nor stereotypical.
The appellant sought the framing of guidelines and inclusion of recommendations for creators of content to follow while dealing with sensitive subjects such as the rights of persons with disabilities in the visual media.
Impugned Decision
The appellant invoked the writ jurisdiction of the High Court under Article of the on the ground that the exercise of the fundamental right to freedom of speech and expression, contravened the appellant’s rights under Articles 14, 15 and 21 by reinforcement of stereotypes by the film. The Court said that the primary challenge that the film was offensive to the sensibilities of persons with disabilities, was not established and underlying that the film was granted certification for unrestricted public exhibition by CBFC, held that the reliefs sought by the appellant were non-maintainable.
Caveat- Disability Humour v. Disabling Humour
The Court stated that the “speech that entrenches stereotypes is opposed to the dignity of such individuals, however, not all speech that uses stereotypes commonly employed against persons with disabilities is abhorrent by reason of such use alone.” The context, intention and the overall message must be considered before such use may be termed as prejudicial, and the protection of free speech lifted. The Court said that humour and disabilities are viewed as uneasy companions. The Court also said that the medical model treats disability as a personal ‘tragedy’ which is by definition, incompatible with humour, however, the said understanding is now obsolete under the social model which views disability as a function of social barriers that disable such individuals. The stereotypes stem from a lack of familiarity with disability and this lack arises due to inadequate representation and participation of persons with disabilities in dominant discourse. Therefore, the Court said that ‘disabling humour’ that demeans and disparages persons with disability must be distinguished from ‘disability humour’ which challenges conventional wisdom about disability. The two cannot be equated in their impact on dignity and on stereotypes about persons with disabilities, as disability humour attempts to better understand and explain disability, disabling humour denigrates it.
Analysis
Both, the freedom of speech and expression and the appellant’s rights under Articles 14, 15 and 21, are fundamental rights under Article 19(1)(a) and Article 21 respectively. The Court said that the High Court could have found that the two rights — the freedom of speech and expression of the filmmaker and the rights of persons with disabilities, need not be balanced because the rights in question (dignity, non-discrimination and equality) do not include the right to curb the filmmakers’ rights to exhibit a film duly certified for such exhibition. In the alternative, the High Court could have undertaken a balancing of the two rights according to the single or the double proportionality test- depending on whether it felt one of the rights took precedence over the other.
Placing its reliance upon Indibly Creative Private Limited v. Government of West Bengal, , the Court stated that the freedom under Article 19(1)(a), that is the creative freedom of the filmmaker cannot include the freedom to lampoon, stereotype, misrepresent or disparage those already marginalised. The Court clarified that if the overall message of the work infringes the rights of persons with disabilities, it is not protected speech, obviating the need for any balancing. However, the Court added that in appropriate cases, if stereotypical/disparaging portrayal is justified by the overall message of the film, the filmmaker’s right to retain such portrayal will have to be balanced against the fundamental and statutory rights of those portrayed.
Appellant’s recommendations
Regarding the recommendations to beep certain parts of the present film, the Court refused to interfere with the finding, especially considering the inclusion of a disclaimer in the film. The Court reiterated that it is for the Board to draw the line between permissible and impermissible portrayal of social ills through visual media and ensure that the Guidelines are meant to be read as broad standards for the same. The Court said that the certification in the present case implied that the Board found that the overall message of the film was in accordance with the guidelines and the .
The Court also refused to accept the recommendation that Sony Pictures make an awareness film according to Section of the and said that the provision is directed towards the appropriate government. The Court also said that such a direction would amount to compelled speech, which is only permitted under Article of the , albeit in a very different context from the present. On inclusion of subject matter experts to the Board and advisory panels, the Court said that the field is sufficiently occupied by the Cinematograph Act and the certification Rules of 1983 and 2024 does not merit the interference of the Court.
Directions
Further, the Court provided a framework of the portrayal of persons with disabilities in visual media that aligns with the anti-discrimination and dignity affirming objectives of the as well as the RPwD Act, in line with findings of Vikash Kumar v. UPSC, ( , wherein it was emphasised that the fundamental rights under Part III of the apply with equal rigour to persons with disabilities.
“The language of our discourse ought to be inclusive rather than alienating.”
The Court said that “words cultivate institutional discrimination.” Terms such as “cripple” and “spastic” have come to acquire devalued meanings in societal perceptions about persons with disabilities. They contribute to the negative self-image and perpetuate discriminatory attitudes and practices in society. The Court laid down the following directions:
Language that individualises the impairment and overlooks the disabling social barriers (e.g. terms such as “afflicted”, “suffering”, and “victim”) should be avoided or adequately flagged as contrary to the social model;
Creators must check for accurate representation of a medical condition as much as possible. The misleading portrayal of what a condition such as night blindness entails may perpetuate misinformation about the condition, and entrench stereotypes about persons with such impairments, aggravating the disability;
Persons with disabilities are under-represented. Average people are unaware of the barriers persons that they face. Visual media must reflect their lived experiences. Their portrayal must capture the multitudes of their lived realities, and should not be a uni-dimensional, ableist characterisation;
Visual media should strive to depict the 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. Such portrayals should reflect the multifaceted lives of persons with disabilities, emphasizing their roles as active community members who contribute meaningfully across various spheres of life. By highlighting their achievements and everyday experiences, media can shift the narrative from one of limitation to one of potential and agency;
They should neither be lampooned based on myths (such as, ‘blind people bump into objects in their path’) nor presented as ‘super cripples’ on the other extreme. This stereotype implies that persons with disabilities have extraordinary heroic abilities that merit their dignified treatment. For instance, the notion that visually impaired persons have enhanced spatial senses may not apply to everyone uniformly. It also implies that those who do not have such enhanced superpowers to compensate for the visual impairment are somehow less than ideal;
Decision-making bodies must bear in mind the values of participation. The ‘nothing about us, without us’ principle is based on the promotion of participation of persons with disabilities and equalisation of opportunities. It must be put to practice in constituting statutory committees and inviting expert opinions for assessing the overall message of films and their impact on dignity of individuals under the Cinematograph Act and Rules;
The CPRD also requires consultation with and involvement of persons with disabilities in the implementation of measures to encourage portrayal that is consistent with it. Collaboration with disability advocacy groups can provide invaluable insights and guidance on respectful and accurate portrayals, ensuring that content aligns with the lived experiences of persons with disabilities; and
Training and sensitization programs should be implemented for individuals involved in creating visual media content, including writers, directors, producers, and actors. These programs should emphasize the impact of their portrayals on public perceptions and the lived experiences of persons with disabilities. Topics should include the principles of the social model of disability, the importance of respectful language, and the need for accurate and empathetic representation. Regular workshops and collaboration with disability advocacy groups can foster a deeper understanding and commitment to responsible portrayal.
CASE DETAILS
| Citation: Civil Appeal No. 7230 of 2024 Appellants : Nipun Malhotra Respondents : Sony Pictures Films India Private Limited | Advocates who appeared in this case For the petitioner: Sanjoy Ghose, Senior Advocate, Jai Anant Dehadrai, Advocate, Pulkit Agarwal, AOR, Sudhanshu Kaushesh, Advocate, Siddharth Sharma, Advocate, Md Tasnimul Hassan, Advocate, Martin G George, Advocate, Vibhu Tandon, Advocate, Prashant Kumar Yadav, Advocate For the Respondents: Parag Tripathi, Senior Advocate, Ritin Rai, Senior Advocate, Alipak Banerjee, Advocate, Karishma Karthik, Advocate, Salvador Santosh Rebello, AOR, Kritika Grover, Advocate |
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