The Scrapping of FCAT: Good, Bad or Political Agenda?

Confused if the abolition of FCAT was good or bad? Get to hear both sides of the story here.

Film Certification Appellate Tribunal abolished.

(Altered by The Quint)

The recent abolition of the Film Certification Appellate Tribunal (FCAT) by the central government has raised eyebrows. While some film-makers, like Vishal Bhardwaj, have tweeted their objections to the decision, others, such as Prakash Jha, welcomed the move. Let’s take a quick look at some important aspects of this issue, which may affect the certification and release of Indian films in the future.

What was the FCAT?

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The Film Certification Appellate Tribunal (FCAT) was a statutory body, which was constituted via the Cinematograph Act, 1952, by the Ministry of Information and Broadcasting, constituted to hear appeals of film-makers distressed by Central Board of Film Certification (CBFC).

A film has to go through the CBFC before its release. The CBFC's purpose is to certify films. However, the law also allows CBFC to demand modifications to be made to a film before providing certification, if needed. Over the past few years, CBFC has used this power to request cuts in films because of various reasons. For example, in 2016 the CBFC suggested 94 cuts in Abhishek Chaubey’s film ‘Udta Punjab’. In the same year, they decided to stay the release of Alankrita Shrivastava’s ‘Lipstick Under My Burkha’. This is where the FCAT came in. Film-makers who were unhappy with the decision of the CBFC could approach the FCAT.

FCAT was headed by a chairperson and had four other members, including a secretary appointed by the Government of India to handle appeals that came their way.

Why Shutting Down FCAT Is Worrying

The abolition of FCAT means that now if film-makers have an issue with CBFC’s recommendations, they will need to directly approach the high court.

Speaking to The Quint, Anurag Kashyap highlighted the problems film-makers could face because of this.

“This means that producers will become scared to get caught in the loop of the high court, with no certainty about when their films will release. It will also discourage film-makers to make movies on stronger themes.”

Anurag Kashyap, film-maker

Director Hansal Mehta tweeted, "Do the high courts have a lot of time to address film certification grievances? How many film producers will have the means to approach the courts? The FCAT discontinuation feels arbitrary and is definitely restrictive. Why this unfortunate timing? Why take this decision at all?"

Filmmaker Hansal Mehta's thoughts on abolition of FCAT.

(Photo Courtesy: Twitter)

Actor Sharmila Tagore, who formerly headed the CBFC, told The Quint that during her tenure at CBFC, she had requested the ministry to expand their (FCAT’s) mandate because that would have helped the producers.

“Very few producers can go to court. Even if producers can sustain the economic cost, the time lost would cost them dearly because any court case as you can imagine can take a while.”

Sharmila Tagore, actor and former head of CBFC

This brings us to the problems that the film industry thinks scrapping FCAT can cause:

• Fighting a case in the high court can burn a hole in the producer's pocket.
• The process can be time consuming and lead to more losses for the producer.
• Because of the above two reasons, film-makers will be discouraged to make movies on controversial subjects.

The Other Side of the Debate

Unlike other film-makers, Jha has a different opinion about the decision to abolish FCAT.

“Everything depends on what kind of mindset is managing the institution. When Pahlaj Nihalani was heading CBFC, every day there would be a controversy. Have you seen a single controversy since Prasoon (Joshi) took over? Just assume FCAT never existed and the government suddenly created this new body. Even then we would have had issues. Whenever there is change, people like putting their opinions across. This is also a change.”

Prakash Jha, film-maker

We also spoke to Major Navdeep Singh, advocate, Punjab & Haryana High Court, and founding President of Armed Forces Tribunal Bar Association. He addressed a few of the concerns flagged by film-makers:

Fighting a Case In the High Court Can Be Expensive

Firstly, the tribunal is in Delhi. Most of the affected parties are in Maharashtra.

So what would be cheaper? Engaging a lawyer in Delhi and fighting the case in Delhi and then again fighting the case in the High Court in case the order of the tribunal goes against you? Or fighting the case in the High Court of your own state in the first instance itself?

Secondly, it is a misconception that tribunals are cheaper. The same kind of legal assistance that you require in a court is required in a tribunal.

The tribunal is merely a quasi-judicial body which functions under the government. Whereas the high court is an independent Constitutional body. It does not function under anyone. If you are dissatisfied with the judgment of a tribunal, you challenge it in the high court. And now you can directly go to the HC and one legal layer is removed."

The Process Can Be Time Consuming

“Again there seem to be misconceptions about how the High Court functions,” he added. You cannot compare such matters with some criminal case or some criminal trial in a lower court or some property dispute in the lower court, where evidence is to be recorded and witnesses are to be examined. Doesn’t the High Court hear anticipatory bail petitions? Or habeas corpus cases? Or other writ petitions where there is urgency?

"How is first approaching the FCAT in Delhi and then challenging its order in the HC, if dissatisfied, less time consuming than approaching the latter directly within your own state?"

Is There a Political Agenda Behind it?

"This decision of rationalising tribunals is not political in nature but the result of a process initiated on orders of the Supreme Court, and it's not just for films. Today, we have created tribunals in multiple fields and they threaten the concept of judicial independence. The Supreme Court has asked the government time and again to harmonise and rationalise them. There are so many tribunals where you don't even appoint members, cases are just languishing. They are under the control of the government. There's no access to justice in certain cases where the tribunal is located in a far off place or in Delhi, unlike Courts that function in every State and do not come to a standstill due to non-appointment of members.

This process has been initiated because of a series of judgements of the Supreme Court, which apply to everyone. I think many are under the impression that the government has done something on their own. The government has passed an ordinance but the part of the ordinance that deals with rationalisation of tribunals is broadly based upon the observations of the Supreme Court. I think it is favourable and not detrimental.”

Is There a Drawback to Scrapping FCAT?

"From the point of view of judicial independence, this is the best thing that can happen."

The only drawback that I see here in the initial stages is that FCAT or any other body they have, can view a film over and over again, recheck the clips etc but that can be an issue in the High Court, because then you will be expecting judges to watch a movie, apply their mind on the scenes and reach a conclusion such as which cut is better and which one is not etc.

"But that can always be resolved and would become smoother in some period since most of the times, judges are allotted subjects as per a fixed roster and with time the system stabilizes. Hence, with time the system will evolve and the judges would adjust and configure themselves to the kinds of cases that are coming to them."

A final call on the pros and cons of abolishing the FCAT can now be taken when a film actually has a run in with the CBFC and has to approach the High Court for a quick hearing and decision.