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The Supreme Court on Monday said that the creative freedom of the filmmaker cannot include the freedom to lampoon, stereotype, misrepresent or disparage those already marginalised. 

"There is a difference between a film that is set in the backdrop of communal violence and which cannot eschew depiction of violence from portrayal that outright extols such violence. Similarly, 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," a bench of Chief Justice of India D Y Chandrachud and J B Pardiwala said.

The court said, however, 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.

The court was dealing with a plea by Nipun Malhotra who sought guidelines against filmmakers, regarding the provisions of the Rights of Persons with Disabilities Act, 2016 and the composition of the Censor Board and the Advisory panel under the Cinematograph Act and recommendations to beep certain parts of the film titled ‘Aankh Micholi’ as well.

The bench said, "We endorse slow interference with the determination of an expert body under the Cinematograph Act, particularly to allow the exhibition of a film."

The court said 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.

It noted 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 RPwD Act.

"We are not inclined to interfere with this finding by recommending beeping out parts of the film, especially considering the inclusion of a disclaimer in the film," the bench said.

The court further said that the recommendation sought in the present case was for creation of a whole different film on the ground of a statutory mandate of spreading awareness which was not even directed towards a private entity such as Sony Pictures.

"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). The Cinematograph Act is an instance of reasonable restrictions on this right under the ‘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 the ability to stir emotions more deeply than other artistic media," the bench said.

With regard to a plea for inclusion of subject matter experts on the Board and advisory panels, the bench said, "We believe that the field is sufficiently occupied by the Cinematograph Act and the certification Rules of 1983 and 2024 does not merit our interference."

The bench felt that the 2024 Rules are a welcome acknowledgment of this principle and that consultations with subject matter experts on disability would certainly better inform the perspective of the Board. 

"The policy underlying the Act and the Rules already accounts for expert consultation. This court cannot interfere merely because it could be better or that a better alternative is available, when the legality of such policy is not in question. The Court cannot read additional requirements into unambiguous provisions. It is beyond the remit of constitutional courts to specify the qualifications or expertise that the constituents of these bodies must possess or to direct that such a requirement be legislatively included into the statute," the bench said.

The court, however, said, that since the issue involved the fundamental rights of persons with disabilities it would take this opportunity to provide a framework for the portrayal of persons with disabilities in visual media that aligns with the anti-discrimination and dignity affirming objectives of the Constitution as well as the RPwD Act. 

"We are cognisant that Article 19(2) of the Constitution is exhaustive of the limitations that can be applied on the freedom guaranteed under Article 19(1)(a). The framework we wish to lay down is in line with our findings in Vikash Kumar case where we emphasised that the fundamental rights under Part III of the Constitution apply with equal rigour to persons with disabilities," the bench said.

The court said that 'the language of our discourse ought to be inclusive rather than alienating'.

"As long as the overall message of the film justifies the 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 the disabling barriers in their social participation, without the redeeming quality of the 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 the objective societal treatment of the affected groups by society," the bench said.

The court suggested a broad framework for the representation of persons with disabilities. Court said:

(i) 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; 

(ii) 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.

(iii) 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; 

(iv) Persons with disabilities are under-represented. Average people are unaware of the barriers persons with disabilities 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.

(v) 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.

(vi) 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.

(vii) 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.

(viii) 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.

(ix)Training and sensitisation programs should be implemented for individuals involved in creating visual media content, including writers, directors, producers, and actors. These programs should emphasise the impact of their portrayals on public perceptions and the lived experiences of persons with disabilities. 

The court noted the Rights of Persons with Disabilities Act, 2016, inspired by the Social Model of Disability, marked a significant legislative step forward. This model, which gained prominence after the American Civil Rights Movement, uses the term "person with disability" instead of "disabled person," emphasizing the individuality of people rather than their disabilities. According to the Social model, disability arises not from a person’s impairments but from the artificial barriers imposed by society and the environment. 

The appellant, Malhotra is the founder of an organisation that promotes awareness about disabilities, conducts policy research and provides education to underprivileged children. The appellant, a person with arthrogryposis, was aggrieved by the manner in which persons with disabilities have been portrayed in the movie titled ‘Aankh Micholi’. 

The appeal before the court arose from the judgment of January 15, 2024 of the High Court of Delhi by which his petition was dismissed on grounds of maintainability.