Nipun Malhotra vs Sony Pictures Films India Private Limited 2024 INSC 465 – Art. 19(1)(a) Constitution – Representation Of Persons With Disabilities In Movies Etc. – Guidelines

Constitution of India, 1950; Article 19(1)(a)- 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 – 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, 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- Guidelines: Representation of persons with disabilities must regard the objective social context of their representation and not marginalise persons with disability: (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 v)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 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; (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. 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; (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, ensuring that content aligns with the lived experiences of persons with disabilities; and (ix)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. (Para 74)

Cinematograph Act, 1952- Cinematograph (Certification) Rules, 2024 – Slow interference with the determination of an expert body under the Cinematograph Act, particularly to allow the exhibition of a film. 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. (72.1) – The Board must decide whether a disparaging portrayal stood redeemed by the overall message or not. No doubt this entails a complex balancing of interests as we noted at the outset. It would be ideal if the statutory bodies included subject matter experts. The 2024 Rules are a welcome acknowledgment of this principle and 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.121 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.(Para 72.5)

Rights of Persons with Disabilities Act 2016; Section 7(d)– Section 7(d) is directed towards the appropriate government. While we have underlined that the principle of reasonable accommodation includes positive obligations of private parties to support persons with disabilities and facilitate their full participation, we cannot agree that Section 7(d) includes such an obligation against private person. Even otherwise, such a direction would amount to compelled speech. (Para 72.2)

Humour– ‘disabling humour’ that demeans and disparages persons with disability from ‘disability humour’ which challenges conventional wisdom about disability. While disability humour attempts to better understand and explain disability, disabling humour denigrates it.The two cannot be equated in their impact on dignity and on stereotypes about persons with disabilities. (Para 66)

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