Nipun Malhotra vs Sony Pictures Films India Private Limited

Civil Appeal No. 7230 of 2024 @ Special Leave Petition (C) No. 5239 of 2024

Nipun Malhotra …Appellant

Versus

Sony Pictures Films India Private Limited & Ors …Respondents

Signature Not Verified Digitally signed by Sanjay Kumar Date: 2024.07.08 12:33:30 IST Reason: 1 JUDGMENT

Dr Dhananjaya Y Chandrachud, CJI

Contents

A. FACTUAL BACKGROUND ...................................................................................... 3 B. THE HIGH COURT ................................................................................................ 6 C. LEGISLATIVE FRAMEWORK ................................................................................... 7 I. The 1991 guidelines .................................................................................. 10 II. Article 19(1)(a) and The Cinematograph Act ............................................. 11 D. THE CONTEXT OF SPEECH .................................................................................. 14 I. Disabling imagery: stereotypical portrayal of persons with disabilities in the media. ............................................................................................................... 15 II. Stereotyping as an anti-thesis to dignity and non-discrimination............... 17 III. The Framework of the RPwD Act, 2016 .................................................... 18 IV. International Jurisprudence ....................................................................... 20

1. Equality and Non-Discrimination ............................................................ 22

2. Awareness-raising ................................................................................. 24 V. Indian jurisprudence aligns with the human rights approach. ...................... 28 E. SPEECH MUST NOT PREJUDICE THE MARGINALISED AND DISENFRANCHISE THEM FURTHER. .............................................................................................................. 30

F. CAVEAT: DISABILITY HUMOUR V. DISABLING HUMOUR. ......................................... 31 G. THE PRESENT CASE .......................................................................................... 34

2 PART A

1. Leave granted.

2. The appellant is the founder of an organisation that promotes awareness

about disabilities, conducts policy research and provides education to

underprivileged children. The appellant is a person with arthrogryposis and is

aggrieved by the manner in which persons with disabilities have been portrayed

in the movie titled ‘Aankh Micholi’.

3. The appeal arises from the judgment dated 15 January 2024 of the High

Court of Delhi by which a petition under article 226 was dismissed on grounds of

maintainability.

A. FACTUAL BACKGROUND

4. The appellant addressed a legal notice to the first respondent, Sony

Pictures, on 6 October 2023 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. Sony

Pictures replied to the notice on 17 October 2023. The movie was released on 3

November 2023 with ‘U’ certification from the Central Board of Film Certification.

5. The appellant claims that the film violates the constitutionally protected

rights of persons with disabilities; and the provisions of the Cinematograph Act,

1952 1 and the Rights of Persons with Disabilities Act 2016 2. The appellant claims

1 “Cinematograph Act” 2 “RPwD Act”

3 PART A

that the Central Board of Film Certification 3 has violated its statutory duty to

certify films in accordance with the applicable guidelines.

6. He therefore sought directions:

(i) Mandating the inclusion of an expert on disability within the Central

Board of Film Certification and its advisory panel constituted under

Sections 3 and 5 of the Cinematograph Act;

(ii) Mandating the inclusion of the expert under Section 3 of the

Cinematograph Act, 1952;

(iii) Seeking relief against the first respondent, including punitive

damages; and

(iv) A public apology from the first respondent.

7. The appellant has highlighted instances in the trailer as well as the film

where certain medical conditions have been misrepresented and derogatory

terms have been used for characters who are persons with disabilities. These

include (a) misrepresentation of the condition of night blindness; and (b)

derogatory references to (i) a person with Alzheimer’s as “bhulakkad baap”, (ii) a

hearing-impaired person as a “soundproof system”; and (iii) a character with

speech impairment as an “atki hui cassette”. The appellant submits that the film

portrays a family of persons with various disabilities and revolves around their

attempts to conceal their disabilities in a bid to come across as a ‘normal family’.

The female lead is a person with nyctalopia or night blindness, while the male

3 “CBFC”/”The Board”

4 PART A

lead is a person with hemeralopia, which is an inability to see clearly in bright

light. The plot of the film revolves around the two families of the lead characters

concealing their impairments, in order to arrange a matrimonial alliance.

8. The appellant has urged that the film’s portrayal is derogatory to persons

with disabilities generally and conveys the message that they ought to conceal

their impairments in order to deserve a matrimonial partner. The appellant has

further urged that the film (i) reinforces stereotypes with its misguided portrayals

of persons with disabilities, thereby creating misconceptions, biases and

prejudices against them; (ii) promotes the idea that persons with disability are

unequal; (iii) presents them as subjects of comic relief; (iv) creates an

environment of ridicule; (iv) does not generate empathy towards persons with

disabilities; and (v) fails to promote inclusive and accurate representations of

disabilities. In response, Sony Pictures stated that the overall message of the film

was one of ‘overcoming the challenge of disability’; the film sought to depict the

struggles faced by persons with disabilities and their families and in an effort to

overcome them. The film, they claimed in the reply, sought to dislodge the idea

that disability obstructs a fulfilling life. The reply stated further that (i) the

introduction of the characters in the trailer is protected by the freedom of speech

and expression; (ii) the film does not pity or look down upon the characters but

depicts their agency and skills; (iii) the depiction is neither derogatory nor

stereotypical.

5 PART B

B. THE HIGH COURT

9. The High Court of Delhi noted that the appellant had not disputed the

explanation offered by the first respondent that the overall message of the film

was around overcoming the disability and dwelt on the strength of the characters

suffering from disabilities. The Court noted that the primary challenge that the film

is offensive to the sensibilities of persons with disabilities, is thus not established.

Underlining that the film was granted certification for unrestricted public exhibition

by CBFC, the High Court held that the reliefs sought by the appellant were non-

maintainable.

10. Summarised briefly, the High Court's findings are:

(i) The first respondent’s reply refutes the allegations made in the notice.

They contested any suggestion that the movie's intent was to offend

or humiliate differently-abled persons. Instead, they elucidated the

overarching message of the film as intended by its creator;

(ii) The appellant did not raise further grievances after receiving the reply

and until filing the petition, indicating a lack of challenge to the film's

alleged offensive nature;

(iii) There is a lack of legal justification for the reliefs sought; and

(iv) This dismissal is reinforced by the existence of guidelines issued by

the Central Government under Section 5B(2) of the Act of 1952.

These guidelines, including specific provisions for persons with

disabilities provided a comprehensive framework for film certification.

6 PART C

C. LEGISLATIVE FRAMEWORK

11. We have heard Mr Sanjoy Ghose, senior counsel and Mr Jai Anant

Dehadrai, counsel appearing on behalf of the appellant; Mr Parag Tripathi, senior

counsel appearing on behalf of Sony Pictures and Mr Tushar Mehta, Solicitor

General of India who has appeared to assist the Court on its request. The issues

that arise for our consideration include the impact of the provisions of the RPwD

Act 2016 on the certification of films under the Cinematograph Act.

12. The appellant has alleged that the Board has violated its duties under the

statute for film certification in granting a certificate to the film. The Cinematograph

Act 1952, the Cinematograph (Certification) Rules 1983 4 and the Guidelines for

Certification of Films for Public Exhibition 1991 5, constitute the framework for

certification of films. These provide for certification of films for exhibition and for

regulation of the exhibition of such films. Every film must obtain a prior certificate

for exhibition from the Board under Section 5A of the Act. The Board is

constituted under Section 3 by the Central Government and consists of a

chairperson and a minimum of twelve, and a maximum of twenty-five members 6.

An application for the grant of a certificate has to be in the format prescribed in

the Rules 7.

13. Once an application is made, it is assessed by an Examining Committee,

which makes recommendations to the relevant authority, which could be the

Chairperson of the Board or the Regional Officer concerned. The authority, acting

4 “1983 Rules”. The 1983 Rules have been superseded by the Cinematograph (Certification) Rules, 2024 (“2024 Rules”).

5 “Guidelines” 6 Cinematograph Act 1952, Section 3.

7 Cinematograph Act 1952, Section 4; Cinematograph (Certification) Rules 1983, Rule 21.

7 PART C

on the Board’s behalf may act on the recommendations or refer the application to

the Revising Committee which includes members of the Board or of advisory

panels. 8

14. Section 5 provides for Advisory Panels 9 consisting of persons qualified to

judge the effect of the films on the public. The Advisory panels are appointed to

facilitate the efficient functioning of the Board. The Board may consult the panel

in respect of any application for the certification of a film. The panel has to

examine the film and make its recommendations to the Board in accordance with

the applicable rules.

15. Section 8 empowers the Central Government to make rules. The 1983

Certification Rules (and the 2024 Rules which superseded them) were framed

under the rule making power. Under the Rules, the Regional Officer appoints an

Examining Committee consisting of members of the Advisory Panel (constituted

under Section 5) and an Examining Officer 10. The Examining Officer submits

recommendations of the Examining Committee to the authority prescribed in the

Rules, based on the type and length of the content, and takes personal

responsibility for compliance with every guideline. 11 The Chairperson of the Board

can require the Regional Officer to act on behalf of the Board, in conformity with

the recommendations of the Examining Committee. The Chairperson may, in the

alternative, on their own motion or on a request by the applicant, refer the record

to the Revising Committee under Rule 24. The Revising Committee shall

8 Cinematograph (Certification) Rules, 1983, Rule 24.

9 Cinematograph Act 1952, Section 5.

10 Cinematograph (Certification) Rules, 1983, Rule 22.

11 ibid, Rule 22 (13).

8 PART C

examine the film and send the recommendations to the Chairperson of the Board.

If the Chairperson disagrees with the decision by majority of the Revising

Committee, the Board shall itself examine the film or cause the film to be

examined again by another Revising Committee and the decision of the Board or

a second Revising Committee, as the case may be, shall be final. 12 The

certificate granted by the Board is published in the Gazette is valid for 10 years.13

16. The Board may sanction the film for unrestricted public exhibition (‘U’

certificate); public exhibition restricted to adults (‘A’ certificate); (U/A certificate); or

public exhibition restricted to members of a class, having regard to the nature,

content and theme of the film (‘S’ certificate). The Board may certify the film as it

is, or subject to excisions or modifications or refuse to sanction the film for public

exhibition altogether.

17. Section 5B provides that a film shall not be certified if in the opinion of the

Board, it is against “the interests of the sovereignty and integrity of India, the

security of the State, friendly relations with foreign States, public order, decency

or morality, or involves defamation or contempt of court or is likely to incite the

commission of any offence.” Section 5B(2) states that the Central Government

may delineate principles to guide the authority granting a certificate for public

exhibition of films. Accordingly, Guidelines have been framed in 1991.

12

ibid, Rule 24.

13 ibid, Rule 29.

9 PART C

I. The 1991 Guidelines

18. The appellant states that the egregious portrayal of characters with

disabilities in the film necessitates judicially mandated checks and the framing of

guidelines for creators of content. The Guidelines, framed under Section 5B of

the Cinematograph Act, are interpreted as broad standards and require (inter

alia) that the Board must ensure that scenes showing abuse of physically or

mentally handicapped persons are not presented needlessly.14 The guidelines

prescribe sensitive portrayal of women, children and persons with disabilities. 15

The film must be examined as a whole and in line with contemporary standards

of the country and the people to whom it relates.

19. This Court has laid down tests to determine challenges to the portrayal of

persons, situations and characters in films. The aversion defence states that the

portrayal of a social evil meant to arouse revulsion, such as scenes of sexual

violence or communal tension, are meant to draw attention to these evils rather

than to glorify them. They must not be barred for mere portrayal and due regard

must be had to the overall message of the film, rather than standalone scenes.16

Films must remain sensitive to standards of society and alive to social changes. 17

The Board is required to view the film as a whole in applying the above metrics.

The decision must not be based on isolated bits and scenes in the film.18

14 Guidelines For Certification of Films for Public Exhibition 1991, Clause 2 (iii) (b). 15 ibid, Clause 2 (iii) (a), (b).

16 Madhavi Goradia Divan, Facets of Media Law, Second Edition pg 284-285; Bobby Art International v. Om Pal Singh Hoon, 1996 4 SCC 1 [27-28].

17 Guidelines (supra), Clauses 1 (a) and 3 (ii) 18 Director General,Directorate General of Doordarshan & Ors. (2006) 8 SCC 433 [20, 34]. (supra) [38]; S Rangarajan v P Jagjivan Ram and Ors, (1989) 2 SCC 574.

10 PART C

20. Once certified, the film is presumed to have complied with the applicable Rules

and Guidelines, and its effect on the public cannot ordinarily be re-assessed by

the Court, having already been considered by an expert body19.

21. The certification of the film in question is not in issue before us. In that regard, as

the High Court has noted, the appellant has not contested Sony Pictures’ reply to

their legal notice. During the course of the hearing it was stated across the Bar

that since the film has been released in the meantime, the certification itself is not

seriously in challenge. The appellant has sought the framing of guidelines and

inclusion of recommendations for creators to follow while dealing with sensitive

subjects such as the rights of persons with disabilities in the visual media.

II. Article 19(1)(a) and The Cinematograph Act

22. 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)20. The Cinematograph Act is an instance of

reasonable restrictions on this right under the ‘decency and morality’ rubric of

Article 19(2). 21 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. 22 Even so, like restraints on

19 Union of India v. KM Shankarappa (2001) 1 SCC 582; Prakash Jha v. Union of India (2011) 8 SCC 372. 20

19. Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right-(a)to freedom of speech and expression; (2)Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

21 Madhavi Divan, ‘Morality, Obscenity and Censorship’, Supreme Court Cases (Journal), Vol 1 (2003), 1– 16; KA Abbas v. Union of India, (1970) 2 SCC 780 [40].

22 KA Abbas (supra) [20,34].

11 PART C

cinematic speech have to be narrowly construed because of their potential to

imperil the significant value of free speech which is a constitutionally protected

value.

23. In KA Abbas v. Union of India 23, this Court underlined that restraints on

cinematic expression have to be extremely narrow. 24 The Court held that when

determining the effect of a film, the Board must view it from the vantage of an

ordinary person of common sense rather than a hypersensitive person. Moreover,

the Board must be alive to social change and must not adopt a conservative or

orthodox approach. The limits on expression must be ‘necessary’, rather than

merely expedient or convenient, which are relatively lower thresholds.25 The

Board must make a “substantial allowance” in favour of freedom and allow

creative works to interpret both the foibles as well as the good in the society. 26

24. Since the Cinematograph Act provides for an elaborate procedure for certification

of films by expert bodies, the approval of the statutory committees such as the

Examination Committee must be given due weight. The Board has the benefit of

hearing the perspective of the filmmakers, who make relevant representations

before the Board. Courts are slow to interfere with the conclusions of specialised

bodies, constituted under the Act. 27 In this narrow scope of intervention, the Court

may not act like a film critic and must observe certain grounding principles. For

instance, the mere mention of a subject in the film is not problematic in itself and

a deeper examination of the manner in which the theme has been handled is

23 1970 2 SCC 780.

24 KA Abbas (supra) [34].

25 S Rangarajan (supra) [21,53].

26 Ramesh v. Union of India, (1988) 1 SCC 668 [15].

27 Ramesh (Supra) [19].

12 PART C

required.28 In Bobby Art International v. Om Pal Singh Hoon 29, this Court held

that as long as the overall message of the film is not to extol a social evil, its mere

depiction of a social evil is not impermissible. It was held there that the portrayal

of sexual violence could not be construed as a promotion of such violence. 30 In

Nachiketa Walhekar v. Central Board of Film Certification 31, a three-judge

bench speaking through one of us (Dr DY Chandrachud J) refused to stay the

release of a film on the ground of its apprehended use as evidence in a pending

trial. It was held that the Court will be extremely slow to restrain creative works,

once the Board had approved exhibition. 32

25. Restraints on films are founded on principles of due process, social interest,

limited application in cases of absolute necessity and clear purpose of the

restraint. 33 Among the principles which must be borne in mind when deciding

the fitness of a film for public exhibition include the following: (i) Social impact of

the film is judged from the perspective of an ordinary person of reasonable

intelligence and not a hypersensitive person; (iii) Social change, rather than

orthodox notions or what is right and moral must be borne in mind; and (iv) The

film must be judged by its overall message and not from isolated depictions of

social evils.

28 KA Abbas (supra) [50]; See also Ramesh (supra) [17].

29 1996 4 SCC 1.

30 Bobby Art International (supra) [29-33].

31 (2018) 1 SCC 778.

32 Nachiketa Walhekar (supra) [2,4]; See also, Viacom 18 vs Union of India 2018 1 SCC 761 [16]. 33 KA Abbas (supra) [40].

13 PART D

D. THE CONTEXT OF SPEECH

26. We are dealing with cinematic speech. In a slightly different context of anti-hate

speech and group-defamation laws, Professor Ronald Dworkin argued that

freedom of speech and expression extended even to hate speech. While he

conceded the need to protect certain groups from violence and discrimination, he

believed society could adopt laws to offer such protection. He regarded hate

speech as protected speech and necessary, so that anti-discrimination laws could

gain political legitimacy and enforceability among their opponents. His argument

was that “if we want legitimate laws against violence or discrimination, we must

let their opponents speak”. 34 John Stuart Mill on the other hand, argued that such

speech served a public-education function by promoting public debate, and to

sustain constant questioning of the truth35. Disagreeing with Dworkin’s legitimacy

argument as well as Mill’s public debate argument, Jeremy Waldron argued in

The Harm in Hate Speech that on certain issues, society is past the point where it

needs to debate fundamental aspects of issues such as race. Waldron argued

that if hate speech were to be allowed because of its ability to sustain a public

debate, such debate would come at the cost of the dignity of racial minorities,

who have had to bear humiliating attacks on their objective social standing due to

such speech. 36 This affront to one’s dignity and objective treatment by society,

34 Ronald Dworkin, Foreword, in Hare and Weinstein, eds., Extreme Speech and Democracy, v–ix.as cited in Jeremy Waldron, The Harm in Hate Speech, Harvard University Press Cambridge, Massachusetts London, England (2012), Pg 175.

35 John Stuart Mill, On Liberty (Penguin Books, 1982) [99, 106] as cited in Jeremy Waldron, The Harm in Hate Speech, Pgs 194, 197.

36 Jeremy Waldron (supra), Pg 195.

14 PART D

rather than the more subjective notion of the ‘effect on one’s feelings’ by way of

such speech must be curbed. 37

27. Even though Waldron was writing in a different context, he highlights the

importance of the ‘context’ of speech as paramount in deciding the validity of

restraints on it. Derogatory speech and stereotypes usually target the

marginalised. The impact of the speech on human dignity; the identity of the

speaker and the target; and the linguistic connotations of the speech may be

considered in deciding issues around stereotypical speech. The standard of the

‘overall message’ of a film, in some ways, furthers this emphasis on the

importance of context and manner of portrayal in visual media. 38

I. Disabling imagery: stereotypical portrayal of persons with disabilities in the

media.

28. Media portrayals of persons with disabilities have been historically oppressive.

Consistent with the understanding that disability was ‘anomalous’ in a normative

framework of ability, persons with disabilities were represented in disparaging

ways. They were portrayed as evil, as objects of pity, violence, curiosity and

ridicule, as burdens on society, sexually abnormal, and overall, as people

incapable of community participation 39. Such disabling imagery formed “the

37 Jeremy Waldron (supra), Pgs 107,197 “I think we do need to ask whether we are past the stage where society is in such need of a robust debate about fundamental matters of race that we ought to bear the costs of what amount to attacks on the dignity of minority groups. Think of what those costs may involve. Are we re ally in need of such robust debate on racial ontology that we have no choice but to require individuals and families within minority groups to bear the costs of such humiliating attacks on their social standing?” 38 Bobby Art International (supra).

39 Colin Barnes, Disabling Imagery and the Media, An Exploration of the Principles for Media Representation of Disabled People, The British Council Of Organisations Of Disabled People, Part Two :Commonly Recurring Media Stereotypes (1992) Pg 7 <https://disability-studies.leeds.ac.uk/wp-

15 PART D

bedrock on which the attitudes towards, assumptions about and expectations of

disabled persons are based” 40. Such portrayal perpetuated stigmatising views

about disability as a vulnerability or a ‘suffering’. 41 Recurrent negative portrayals

as illustrated above and frequent use of patronising and offensive language such

as “victim”, “differently abled”, or “unfortunate” to describe individuals continue to

perpetuate negative attitudes towards persons with disabilities.

29. The problem with such portrayal is that it channels attention on the medical

aspects of impairment rather than the social aspects that actually disable a

person. This impacts persons with disabilities as individuals as well, subjecting

them to stigma and social exclusion. 42

30. As Allan Sutherland wrote, “stereotyped views frequently act as self-fulfilling

prophecies, forcing the person with a disability into a role that can then be used

to justify the original treatment.” 43 They shape and strengthen the already existing

negative assumptions about their abilities 44. This resultantly exacerbates

systemic inequalities, and inhibits their dignified participation in the public sphere

for education or employment. 45

31. Humour is a powerful medium of speech that can reinforce attitudes and

influence behaviour towards groups. Pejorative jokes may reinforce stereotypical

assumptions about disabilities, validating abusive attitudes and practices towards

content/uploads/sites/40/library/Barnes-disabling-imagery.pdf>; Angharad E. Beckett, Citizenship and Vulnerability: Disability and Issues of Social and Political Engagement, Palgrave Mamillan (2006) Pg 40 ibid.

41 Beckett (ibid) at Pg 109.

42 Colin Barnes et al., Exploring Disability. A Sociological Introduction, Cambridge, Polity Press, (1999) Pg

10. 43 Allan Sutherland, Disabled we Stand, London: Souvenir Press (1981) < https://disability- studies.leeds.ac.uk/wp-content/uploads/sites/40/library/Sutherland-CHAPTER6.pdf> 44 Beckett (supra) Pg 3 45 ibid Pg 109.

16 PART D

persons with disabilities. 46 Humour, however, also has a complex dual role for

persons with disabilities. It could be “both liberating and stigmatising” depending

on the context of the joke and who is telling it. 47 We shall advert to this dual role

later.

II. Stereotyping as an anti-thesis to dignity and non-discrimination.

32. This Court is cognisant of the impact of stereotypes on discrimination and the

enjoyment of fundamental rights. We have traced safeguards against

stereotyping to the anti-discrimination code under Article 15, the right to dignity

and to equality.

33. For instance, in Anuj Garg v. Hotel Association of India, 48 this Court struck

down a law that barred women’s employment in premises where liquor was

consumed. Such an indirectly discriminatory law was held to be inflicted by

“incurable fixations of stereotype morality and conceptions of sexual role”.49 In

Navtej Singh Johar v. Union of India,50 this Court found that Section 377 of the

Indian Penal Code was discriminatory and premised on stereotypes about binary

genders and the role of sex. It singled out a class of people on a basis proscribed

under Article 15(1) 51. A provision that was based on and perpetuated stereotypes

deprived certain individuals of their right to equal participation as citizens and 46 Teresa Milbrodt, Today I Had an Eye Appointment, and I'm Still Blind": Crip Humor, Storytelling, and Narrative Positioning of the Disabled Self, Disability Studies Quarterly, University of Missouri, Columbia, Volume 38 (2018) [11] < https://dsq-sds.org/index.php/dsq/article/view/6163/4902 > 47 Tom Shakespeare, Joking a part, Body and Society, (1999) Volume 5(4), 47-55 as cited in Kinda Abujbarah, Laughing Back: A Phenomenological Study of Disability Humor Using Culturally Responsive Methodologies (Doctoral Dissertation) (2019) < https://web.archive.org/web/20200506223854id_/https:/digitalcommons.chapman.edu/cgi/viewcontent.cgi? article=1008&context=education_dissertations > [39-40]; See Union of India v. National Federation of the Blind, (2013) 10 SCC 772 [Justice P Sathasivam, 50].

48 (2008) 3 SCC 1 49 Anuj Garg (supra).[46].

50 (2018) 10 SCC 1 51 Navtej Singh Johar v. Union of India (2018) 10 SCC 1 [Justice Chandrachud, 460].

17 PART D

equal enjoyment of life. 52 In Indian Young Lawyers Association v. State of

Kerala 53, a Constitution Bench of which one of us was a part (Dr DY

Chandrachud), found that stereotypes about sex undercut dignity. The

paternalistic notion that women were a weaker sex was found to be contrary to

the dignity of women (inter alia) and as such, impermissible. 54 The Constitution

envisions dignity, liberty and equality as imperatives for a dignified society. The

“dehumanising effect of stereotypes” has been recognised by this Court in

upholding the rights of those at the receiving end of these prejudicial notions and

biases. 55

III. The Framework of the RPwD Act, 2016

34. The Rights of Persons with Disabilities Act, 2016, inspired by the Social Model of

Disability, marks 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.

35. The RPwD Act defines a person with a disability as someone with a long-term

physical, mental, intellectual, or sensory impairment that, in interaction with

52 ibid [608].

53 (2019) 11 SCC 1 54 ibid, [Justice Chandrachud, 297].

55 Indian Young Lawyers Association (supra) [300].

18 PART D

societal barriers, hinders their full and effective participation in society on an

equal basis with others 56.

36. For the first time, the 2001 Census counted people with disabilities. This inclusion

marked a step towards recognizing persons with disabilities as a distinct group

deserving of rights tailored to their needs. Earlier efforts, such as the Mental

Health Act of 1987 and the establishment of the Rehabilitation Council of India in

1986, laid the groundwork for these advancements. The 1995 Persons with

Disabilities Act further propelled the Disability Rights Movement by addressing

early detection, education, employment, affirmative action, non-discrimination,

and barrier-free access. 57

37. Years of advocacy culminated in the enactment of the RPwD Act 2016, aligning

Indian law with the UN Convention on the Rights of Persons with Disabilities 58.

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.

38. The RPwD Act represents a fundamental shift from viewing disability through a

charity lens to a human rights perspective. Its core aim is to empower persons

with disabilities by upholding their inherent dignity and autonomy. The Act broadly

underscores principles of non-discrimination, full and effective participation in

society, and the inclusion of all individuals, emphasizing the respect for

differences and the acceptance of disabilities as an integral part of human 56 The Rights of Persons with Disabilities Act, 2016, s. 2(S).

(s) “person with disability” means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others;

57 The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 58 “CRPD”

19 PART D

diversity. It enshrines equality of opportunity, accessibility, gender equality, and

the recognition of the evolving capacities of children with disabilities, ensuring

their right to maintain their identities.

39. Section 3(1) of the RPwD Act mandates that the appropriate government ensure

persons with disabilities enjoy the right to equality, life with dignity, and respect for

their integrity on par with others. 59 The Act comprehensively prohibits

discrimination against persons with disabilities in various spheres, including

employment, education, access to public places, and provision of goods and

services. It asserts that no person with a disability shall be deprived of any right

or benefit available to others. This legislative framework reinforces the

commitment of the Act to fostering a society that respects and upholds the rights

of all individuals, regardless of disability status, thereby promoting inclusivity and

societal harmony.

IV. International Jurisprudence

40. The human rights approach to disability has evolved over the latter half of the

20th century, incorporating disability into a broader paradigm of rights that began

with the United Nations’ Universal Declaration of Human Rights of 1948. This

declaration acknowledged that all individuals have civil, political, economic,

59 Section 3. Equality and non-discrimination.— (1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others. (2) The appropriate Government shall take steps to utilise the capacity of persons with disabilities by providing appropriate environment.

(3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim. (4) No person shall be deprived of his or her personal liberty only on the ground of disability. 8 (5) The appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities.

20 PART D

social, cultural, and development rights, despite their differences. 60 From this

viewpoint, disability is seen as a variation in human characteristics, enriching the

diversity of societal contributions and requiring mechanisms to ensure individuals

can realize their potential. 61

41. This rights-based perspective views people with disabilities as subjects rather

than objects, shifting from seeing them as problems to recognizing them as rights

holders. Since the mid-1970s, this perspective has manifested in four ways at the

UN level: through non-binding declarations and resolutions, in the interpretation

of general human rights treaties, in the drafting of thematic human rights treaties,

and in the ongoing work of specialized agencies. The CRPD aims to promote,

protect, and ensure the full and equal enjoyment of all human rights and

fundamental freedoms by persons with disabilities, emphasizing respect for their

inherent dignity. The Convention does not create new rights but expresses

existing rights in a way that addresses the needs of PWDs.

42. A Committee monitors the implementation of the Convention. Countries that ratify

it, including India (in 2007), must report regularly on their progress. The 2030

Agenda for Sustainable Development also pledges to "leave no one behind,"

asserting that persons with disabilities must be both beneficiaries and agents of

change.

60 The Universal Declaration of Human Rights of 1948.

61 See The Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol, From Exclusion to Equality: Realizing the rights of persons with disabilities (2007). https://www.un.org/disabilities/documents/toolaction/ipuhb.pdf

21 PART D

1. Equality and Non-Discrimination

43. Equality and non-discrimination are fundamental to all human rights treaties. The

International Covenant on Civil and Political Rights and the International

Covenant on Economic, Social and Cultural Rights prohibit discrimination on

various grounds, forming the basis for Article 5 of the CRPD. 62 Thematic UN

human rights conventions aim to establish equality and eliminate discrimination,

with provisions specifically addressing these principles. The CRPD builds on the

experiences of other conventions, evolving the UN's approach to equality and

non-discrimination.

44. The CRPD Committee routinely observes several forms of discrimination against

persons with disabilities, including violations in accessing the built environment,

transportation, information, and communications; negative portrayals and harmful

stereotypes in the media; deprivation of the right to legal capacity; barriers to

accessing justice, education, and employment; and restrictions on participating in

cultural life, recreation, leisure, and sports. 63 Despite the adoption and ratification

of the CRPD by many countries, disability-based discrimination persists due to

continued reliance on charity and medical paradigms. In light of the foregoing

considerations, it is evident that there exist outdated approaches to addressing

62 Article 5 - Equality And Non-Discrimination

1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention. 63 OHCHR, General Comment 6 on Article 5: Equality and Non Discrimination, (CRPD/C/GC/6, 26 April 2018), Para 2. See https://www.ohchr.org/en/documents/general-comments-and- recommendations/general-comment-no6-equality-and-non-discrimination

22 PART D

disability, which fail to acknowledge individuals with disabilities as full rights

holders. 64 These approaches, characterized by a desire to "care for and protect"

persons with disabilities or to "fix" or "cure" them, are fundamentally incompatible

with the principles of equality and non-discrimination enshrined in the CRPD.

45. The General Comment on Article 5 of the CRPD states that state parties should

take proactive measures to address discriminatory portrayals of persons with

disabilities in the media. 65 Such portrayals, rooted in charity, welfare, and

medical paradigms, perpetuate harmful stereotypes and undermine the dignity

and autonomy of individuals with disabilities. States must therefore implement

measures to encourage the media to portray persons with disabilities in a manner

consistent with the CRPD, thereby combating negative views that depict them as

dependent or lacking autonomy.

46. The human rights approach to disability has been highlighted in many

international cases. In Glor v. Switzerland 66, the European Court of Human

Rights declared a European and worldwide consensus on protecting persons with

disabilities against discrimination, referencing the CRPD. In this case, the

applicant, deemed unfit for military service due to diabetes, was still taxed for not

performing military service. 67 The court held that Switzerland had unlawfully

discriminated against him. In Bacher v. Austria68, the applicant, with autism and

Down Syndrome, faced accessibility issues when a wooden roof crucial for

accessing his home was destroyed. The CRPD Committee noted that states

64 Ibid. Para 3.

65 Ibid, Para 44.

66 Glor v Switzerland, 13444/04, para 53.

67 Ibid.

68 Bacher v Austria (026/2014), Views CRPD/C/19/D/26/2014, para 3.3.

23 PART D

must ensure equal access for Persons with Disabilities to public goods, products,

and services in a manner that respects dignity. 69

47. The human rights approach to disability, reflected in the CRPD, represents a

significant evolution in international human rights law. It emphasizes the need to

treat persons with disabilities as rights holders, ensuring their full participation

and inclusion in society.

2. Awareness-raising

48. Article 8 of the CRPD mandates measures for raising awareness about disability

rights, 70 including:

69

Ibid. Para 9.9.

70 Article 8 – Awareness-raising

1. States Parties undertake to adopt immediate, effective and appropriate measures:

a) To raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities;

b) To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life;

c) To promote awareness of the capabilities and contributions of persons with disabilities.

2. Measures to this end include:

a) Initiating and maintaining effective public awareness campaigns designed:

i. To nurture receptiveness to the rights of persons with disabilities; ii. To promote positive perceptions and greater social awareness towards persons with disabilities;

iii. To promote recognition of the skills, merits and abilities of persons with disabilities, and of their contributions to the workplace and the labour market;

b) Fostering at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities;

c) Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention;

d) Promoting awareness-training programmes regarding persons with disabilities and the rights of persons with disabilities.

24

PART D

i. Raising awareness at all levels of society, starting from families, to instill

respect for disability rights and dignity;

ii. Fighting stereotypes and prejudices against persons with disabilities in

various life domains, regardless of sex or age; and

iii. Promoting recognition of the abilities and valuable contributions of persons

with disabilities.

49. Awareness-raising campaigns targeting both the public and private sectors are

essential for combating stereotypes, prejudices, and harmful practices relating to

persons with disabilities. 71 These campaigns should address misconceptions

that individuals with disabilities, such as autistic persons, deaf persons, blind

persons, and persons with psychosocial disabilities, are less likely to interact with

colleagues or be more productive due to fewer distractions. It is crucial to identify

and eliminate value systems like ableism that underpin legislation, policies, and

practices leading to inequality and discrimination.

50. Article 4.3 is significant for raising awareness. 72 The CRPD Committee

recommends that States parties implement systematic awareness-raising

programs with the participation of Disabled Persons' Organizations 73 and

Organizations of Persons with Disabilities. 74 This is articulated in the General

Comment 7 on Articles 4.3 and 33.3 which talk about the participation of persons

71 OHCHR, Monitoring the Convention on the Rights of Person with Disabilities: Guidance for Human Rights Monitors Professional Training Series No. 17 ( 2010). https://www.ohchr.org/sites/default/files/Documents/Publications/Disabilities_training_17EN.pdf 72 Art 4 (2) CRPD states that: “With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present convention that are immediately applicable according to international law.” 73 “DPO” 74 “OPDs”

25 PART D

with disabilities in the implementation and monitoring of the Convention 75. The

Comment states that these programs should include media campaigns that

portray positive images of persons with disabilities, especially those with

albinism, psychosocial and/or intellectual disabilities, and deaf-blind persons, as

human rights holders. 76

51. Stereotypes, ableism, and misconceptions that prevent independent living for

persons with disabilities must be eradicated, promoting a positive image of their

contributions to society. Training programs for public-sector officials must align

with the principles of the CRPD and the human rights model of disability to

overcome entrenched gender and disability stereotypes. Awareness-raising

should involve authorities, civil servants, professionals, the media, the general

public, and persons with disabilities and their families, and should be carried out

in close cooperation with representative organizations of persons with disabilities.

52. The CRPD requires member states to "closely consult with" and "actively involve"

persons with disabilities through their organizations in the development and

implementation of awareness-raising campaigns. 77 This is crucial for shifting the

perception of persons with disabilities from "objects of charity" to "rights holders."

While awareness creation is not a right per se, the Convention obliges States

parties to raise awareness about the rights of persons with disabilities.

Establishing a right is different from ensuring its realization, which is why State

parties must provide an enabling environment for persons with disabilities to fully

75 See OHCHR, General Comment 7 on Article 4.3 and Article 33.3- the participation of persons with disabilities in the implementation and monitoring of the Convention, (CRPD/C/GC/7, 09 November 2018). 76 Ibid.

77 Ibid.

26 PART D

enjoy their rights. The media's power to shape attitudes and create awareness is

a vital component of this enabling environment.

53. The CRPD emphasizes respect for difference and acceptance of persons with

disabilities as part of human diversity. It aims to prevent discrimination rather than

disability, shifting the focus from a medical approach to a rights-based approach.

This perspective should also guide public service campaigns related to public

safety and health, ensuring they respect diversity and combat discrimination.

54. The World Programme of Action Concerning Disabled Persons 78 , adopted in

1982, promotes disability from a human rights perspective and provides

recommendations for national, regional, and international action.79 It encourages

developing media guidelines in consultation with disability organizations, training

in self-advocacy for persons with disabilities, and informed education and training

within the media sector to improve disability portrayal. 80 The guidelines should

promote sensitive and accurate portrayals of persons with disabilities across

various media forms, not just news media.

55. In line with the WPA, the United Nations developed guidelines for the inclusion

and portrayal of disabled people in the media, culminating in the booklet titled

"Improving Communications about People with Disabilities." 81 These guidelines,

designed to be adaptable across different media and countries, aim to improve

public perception of persons with disabilities. They cover topics such as inclusion

78 “WPA” 79 The UN General Assembly adopted the WPA, and declared at the same time the United Nations Decade of Disabled Persons, 1983-1992. See also Paul Harpur, ‘From Disability to ability: changing the phrasing of the debate’ (2012) 27 (3) Disability & Society 325, 327. 80 Ibid.

81 United Nations, Improving Communications about People with Disabilities (Recommendations of a United Nations Seminar, 8-10 June 1982, Vienna), p. 5.

27 PART D

in mainstream programming, portrayal and depiction issues, the use of language,

and participation of persons with disabilities in media production.82

56. While the guidelines from the WPA provide effective measures for improving

media portrayal, they are outdated in some respects, particularly their medical-

based understanding of disability. For instance, they include recommendations on

preventing and treating impairments, which may contradict the CRPD's principle

of respecting disability as part of human diversity. However, the guidelines'

promotion, availability, and monitoring mechanisms remain valuable for

encouraging accurate and positive media representations of persons with

disabilities.

V. Indian jurisprudence aligns with the human rights approach.

57. The foundation of laws for persons with disabilities has been traced to the

guarantee of dignity as a core human right, recognised by the Constitution under

Article 21 83. The Scheme of the 2016 Act, as opposed to the preceding 1995 Act,

is not constrained by the availability of resources, but recognises positive

obligations of the State to materialise these rights housed in its various

provisions. 84

58. This Court has held in Vikash Kumar v. Union Public Service Commission 85

that while not specifically mentioned in the Constitution, persons with disabilities

are equally entitled to the rights enumerated therein. We recognised that the

RPwD Act provisions create a protective ambit which encompasses equality, non-

82 Ibid.

83 Jeeja Ghosh v. Union of India (2016) 7 SCC 761 [37, 38].

84 Rajive Raturi v. Union of India, (2018) 2 SCC 413 85 2021 5 SCC 370.

28 PART D

discrimination and dignity. Section 3 of the Act casts an affirmative obligation on

the government to enable the exercise of rights including the right to equality and

dignity, which vest in persons with disabilities with equal rigour as others. 86 This

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. The RPwD Act, we noted, was more than an anti-

discrimination legislation. It emphasized creation of an environment conducive to

the above-mentioned rights including substantive equality and opportunity to

participate in society. 87 This ruling reinforced the obligation of the State and of

private entities to support full participation in society, aligning with the CRPD’s

human rights model of disability.

59. This approach was further demonstrated in Ravindra Kumar Dhariwal v. Union

of India 88, where this Court addressed the discrimination faced by a Central

Reserve Police Force Assistant Commandant who developed a mental disability

during service. The Court emphasized 'dignity' and 'equality' under Section 3 of

the RPWD Act, highlighting the State's positive duty to protect the rights of

persons with disabilities.

60. Recent rulings reflect the judiciary's evolving role in not only safeguarding

individual rights but also in addressing the complex intersections of disability,

gender and mental health, enriching the discourse on equality. This perspective

rejects a one-size-fits-all approach, acknowledging that disability is a nuanced,

individualized concept shaped by factors such as mental impairment and

86 Vikash Kumar (supra) [41-44].

87 Vikash Kumar (supra) [52, 53, 60].

88 (2016) 7 SCC 761.

29 PART E

personal circumstances. The legal framework stresses the need to prevent

stigmatization and discrimination against individuals with disabilities, recognizing

the profound impact on their sense of identity and dignity.

61. The 2016 Act came much after the 1991 Guidelines. The Guidelines include the

Board’s duty to protect against ‘needlessly’ abusive and ridiculing scenes about

persons with disabilities. In view of the instant appeal of visual media, this

guideline furthers the goal of creating an environment conducive to inclusive and

substantive equality in the context of their historically oppressive social treatment.

The certificate entails a presumption that the film complies with the Guidelines. In

this instance, the film was granted a ‘U’ – certificate and it implies that it does not

needlessly portray persons with disabilities in a manner contrary to the guidelines

and statutes governing the field.

E. SPEECH MUST NOT PREJUDICE THE MARGINALISED AND DISENFRANCHISE THEM

FURTHER.

62. Article 19(1)(a) has been termed as “perhaps the most precious of all the

freedoms guaranteed by our Constitution”. 89 Speech and expression form a

crucial part of the democratic give and take 90 and serve as a corrective check on

public policy. 91 Overall, they promote the discursive health of democracy 92. Social

debate must be enriched by diverse voices and wide participation from across the

89 Sakal Papers (P) Ltd v. Union of India (1962) 3 SCR 842 [Justice Mudholkar, 41]. 90 S Rangrajan (supra) [36, 40-43].

91 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 [Bhagwati J, 29]. 92 Prakash Jha v. Union of India (2011) 8 SCC 372 [8, 22-27].

30 PART F

social spectrum. 93 Unfortunately, normative stereotypes about gender, identity,

sexual orientation and disability have hitherto deprived certain groups of such

participation. In Indibly Creative (supra), we held that while satirical speech

effectively exposed social absurdities, hypocrisies and contradictions, even such

expression was subject to Article 19(2). This Court had remarked that if such

expression, which is otherwise acceptable because it promotes discourse, targets

the society’s marginalised, it may “confirm and strengthen people's prejudices

against the group in question, which only marginalises and disenfranchises them

more”.94 Such expression, it was held, may not enjoy the complete protection of

Article 19(1)(a).

F. CAVEAT: DISABILITY HUMOUR V. DISABLING HUMOUR.

63. In the context of historically oppressive representation of persons with disabilities,

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. As stated in

the preceding sections, 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.

64. Humour and disabilities are viewed as uneasy companions. This is primarily

because of the historical use of humour to mock disability, make jokes at the

93 Maneka Gandhi (supra), Indibly Creative (supra) [22, 28] 94 Indibly Creative Private Limited v. Government of West Bengal 2020 12 SCC 436. [23]

31 PART F

expense of persons with disabilities and to use them for comic relief.95 Also, the

medical model treats disability as a personal ‘tragedy’ which is by definition,

incompatible with humour. 96 This understanding is now obsolete under the social

model which views disability as a function of social barriers that disable such

individuals. 97 The social model says that stereotypes stem from a lack of

familiarity with disability. This lack arises due to inadequate representation and

participation of persons with disabilities in dominant discourse. 98

65. Despite the history and the obsolescence of the medical model, humour is not

universally denounced in the context of disability. It is now being increasingly

used as a sophisticated literary medium for engagement with the society by

persons with disabilities. It familiarises the society with the lived experiences of

persons with disability, thereby dispelling prejudicial myths, and sensitising

people. 99 Challenging notions of ‘otherness’ or ‘inferiority’ associated with

persons with disability, humour creates an equal space. 100 Comics with

disabilities use self-deprecating humour to critique the social order and counter

stereotypical images 101. They bring stereotypes to the fore and rely on them in

95 Allison Hobgood and David Wood, Disability Humour and the Meanings of Impairment in Early Modern England, Hobgood, Recovering Disability in Early Modern England. The Ohio State University Press, 2013 [58] <https://muse.jhu.edu/pub/30/oa_monograph/chapter/897500> 96 Shawn Bingham and Sara Green, Aesthetic as Analysis: Synthesizing theories of humor and disability through stand-up comedy, Humanity & Society, Volume 40(3), 1, 6 (2016) < https://journals.sagepub.com/doi/10.1177/0160597615621594 > 97 Mike Oliver, The social model of disability: Thirty years on, Disability & Society, 28(7), 1024-1026, <https://www.tandfonline.com/doi/full/10.1080/09687599.2013.818773 > 98 Kinda Abujbarah (supra) [29].

99 ibid.

100 Bingham and Green (supra) [31].

101 Teresa Milbrodt, Today I Had an Eye Appointment, and I'm Still Blind": Crip Humor, Storytelling, and Narrative Positioning of the Disabled Self, Disability Studies Quarterly, University of Missouri – Columbia Vol. 38 No. 2 (2018) < https://dsq-sds.org/index.php/dsq/article/view/6163/4902 >

32 PART F

order to dispel them. 102 Humour is a reclamation of the public discourse by

persons with

102 Kinda Abujbarah (supra) [43].

33 PART G

disabilities who are pushing back against the dominant, ableist narratives around

disability. 103

66. We must therefore, distinguish ‘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. 104 The two cannot be

equated in their impact on dignity and on stereotypes about persons with

disabilities 105.

G. THE PRESENT CASE

67. The appellant had invoked the writ jurisdiction of the High Court on the ground

that the exercise of the second respondent’s 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.

68. Both these rights are fundamental rights under Article 19(1)(a) and Article 21

respectively. The High Court noted at paragraph 8 of the judgment that since the

appellant had not contested the second respondent’s claim that the overall

message of the film was about resilience of persons with disability, the primary

challenge that the film offended the sensibilities was not established. The 103 Bingham and Green (supra) [3].

104 Bingham and Green (supra) for differences between theories of humour based on how they treat disability- the 105 See Robin Smith and Mara Shapon-Shevin, Disability Humor, Insults, and Inclusive Practice Social Advocacy and Systems Change, 1(2), 2008-2009 <https://sites.cortland.edu/sasc/wp- content/uploads/sites/12/2012/12/Disability-Humor-Final.pdf > Smith et all provide a set of questions one must ask when evaluating humour vis-à-vis disability:

• In the presence of a person with this disability, would you be comfortable sharing this joke? Hearing this joke? • Does this joke laugh AT or WITH? • Is there a cost? Is it exploitive? Who benefits? • Does this joke make you feel empathy, closeness, understanding. • Does it tell you "they" are irrevocably different, make you feel more distant from "them", give the impression they are somehow less than human, provide/reinforce incorrect information about the disability, make you likely to be tense or awkward in the presence of a person with this disability?

34 PART G

countervailing right of freedom of speech and expression of the filmmaker as

stated in the previous sections was not weighed against the rights claimed by the

appellant. The High Court could have found that the two rights – the freedom of

speech and expression of the filmmaker on the one hand 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 106. 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. 107

69. The High Court rightly does not engage in this discussion perhaps because the

appellant expressed satisfaction with a direction for inclusion of expert members

to the Board and the Advisory Panel and because the certification of the film was

not in issue. Therefore, limiting its inquiry to whether such relief could be granted,

the High Court decided against the appellant.

70. In line with the observation in Indibly (supra), we are of the view 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. 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. 108 Similarly, if the overall

message of the work infringes the rights of persons with disabilities, it is not

106 In Re Noise Pollution, (2005) 5 SCC 733.

107 Central Public Information Officer, Supreme Court of India v. Subash Chandra Agarwal, Civil Appeal No. 10044 of 2010.

108 F.A. Picture International v. Central Board of Film Certification, 2004 SCC OnLine Bom 961 [12] as cited in Indibly (supra) [35].

35 PART G

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.

71. The appellant seeks guidelines against filmmakers, regarding the provisions of

the RPwD Act and the composition of the Board and the Advisory panel under the

Cinematograph Act and recommendations to beep certain parts of the present

film as well.

72. Regarding specific recommendations, our views are summarised as follows:

72.1. We endorse 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. 109 The certification in

the present case implies that the Board found that the overall message of

the film was in accordance with the guidelines and the RPwD Act. 110 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.

109

Bobby Art International (supra) [23].

110 See Raj Kapoor (supra).

36 PART G

72.2. The recommendation that Sony Pictures make an awareness film according

to Section 7 (d) of the RPwD Act cannot be granted. 111 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 persons. Even otherwise, such a direction would amount to

compelled speech. Such compelled speech has been allowed by this Court

under Article 19(1) of the Constitution, albeit in a very different context from

the present. A must-carry provision under the Cinematograph Act, mandated

exhibition of short educational films as a licensing pre-condition for

exhibitors. The provision was upheld by this Court in Union of India v.

Motion Pictures Association 112. The provision related to exhibition of a

pre-produced educational short film alongside other films and it applied to

exhibitors. The recommendation sought in the present case is for creation of

a whole different film on the ground of a statutory mandate of spreading

awareness which is not even directed towards a private entity such as Sony

Pictures. The positive obligation mentioned in Vikash Kumar (supra) cannot

be so extended to compel speech in the manner suggested by the

appellant.

72.3. On inclusion of subject matter experts to the Board and advisory panels, we

believe that the field is sufficiently occupied by the Cinematograph Act and

111 Section 7(d)- appropriate Government shall take protective measures against all forms of abuse, violence and exploitation and shall (inter alia) create awareness and make available information among the public.

112 (1999) 6 SCC 150 [Justice Sujata Manohar, 13-15].

37 PART G

the certification Rules of 1983 and 2024 does not merit our interference.

Under the 1983 Rules, the Board may take steps to assess public reactions

to films 113. The Examining Committee is supposed to include women as its

members114. The 1983 Rules and the 2024 Rules envisage consultation

with a subject matter expert: the Examining Committee’s final report is

forwarded to the Chairperson in 10 days, unless the Committee feels that

expert opinion is necessary. In that case, it may submit a provisional report

and seek expert opinion before submitting the final report.115 The 2024

Certification Rules go a step further and provide that a Regional Officer may

invite subject matter experts for the examination of the film by the

Examination Committee or Revising Committee 116.

72.4. Courts have also placed adequate thrust on the fitness of these expert

committees to assess legal requirements beyond the Cinematograph Act,

even with their existing composition. 117 In Raj Kapoor v. State 118, a two-

judge bench of this Court noted that the certificate, which represented the

judgment of an expert body selected for judging the fitness of a film for

public exhibition, also included consideration of the ingredients of other laws

such as the Indian Penal Code 119. Similarly, in Prakash Jha (supra) 120, this

Court rejected a film ban founded on public order. The Court noted that the

113 1983 Rules, Rule 11; 2024 Rules, Rule 12.

114 1983 Rules, Rule 22.

115 1983 Rules, Rules 41 (4) (c), (d).

116 2024 Rules, Rules 23 (3), 25 (3), 117 S Rangarajan (supra) [52].

118 (1980) 1 SCC 43.

119 Raj Kapoor (supra) [Justice Pathak, 26] – “Regard must be had by the court to the fact that the certificate represented the judgment of a body of persons particularly selected under the statute for the purpose of adjudging the suitability of films for public exhibition and that judgment extends to a consideration of the principal ingredients which go to constitute offences under Sections 292 and 293 of the Indian Penal Code.” (emphasis supplied). Also see [Justice Krishna Iyer, 14] 120 Prakash Jha Productions v. Union of India, (2011) 8 SCC 372 [13, 26].

38 PART G

film dealt with a sensitive subject of reservations but it had been duly

cleared by examining committees comprising legal and subject matter

experts and members belonging to the Scheduled Castes/Scheduled Tribes

and Other Backward Class communities, who had approved the screening

of the film.

72.5. 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. We believe 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. 122 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. 123

72.6. The appellant has sought formulation of guidelines to restrict content that

contravenes the Constitution and the RPwD Act 2016. We have stated

above that the guidelines under the Act are quite extensive and cover the 121 See Directorate of Film Festivals v Gaurav Ashwin Jain 2007 (4) SCC 737. 122 Padma Sundara Rao v. State of Tamil Nadu, (2002) 3 SCC 533 [12. 14]. 123 State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1 [33, 36].

39 PART G

field. Such directions are issued to fill legislative gaps. 124 If allowed, such

guidelines would be akin to reading the provisions of one statute that is, the

RPwD Act 2016 into another statute, that is the Cinematograph Act, even

though the latter does not suffer from a vacuum on the issue, and the

statutory expert body is presumed to have account for the effect of the

former anyway125. Courts cannot trench into policy-making. 126 The High

Court was therefore, justified in not granting the abovementioned reliefs and

we cannot make recommendations to that effect.

73. Since the issue involves the fundamental rights of persons with disabilities, we

take this opportunity to provide a framework of 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)127. The

framework we wish to lay down is in line with our findings in Vikash Kumar

(supra) where we emphasised that the fundamental rights under Part III of the

Constitution apply with equal rigour to persons with disabilities.

74. The language of our discourse ought to be inclusive rather than alienating. We

noted in Vikash Kumar (supra), that insensitive language was contrary to the

dignity of persons with disabilities. 128 As long as the overall message of the

film justifies the depiction of disparaging language being used against persons

124 P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 [25, 26]. 125 See Raj Kapoor (supra).

126 Census Commissioner v. R Krishnamurthy, (2015) 2 SCC 796 [24-26]. 127 See Indibly (supra).

128 Vikash Kumar (supra) [84].

40 PART G

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. 129 We believe

that 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 130;

(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;

129

Jeremy Waldron (supra).

130 See Vikash Kumar (supra) [84-86].

41 PART G

(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 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;

42 PART G

(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; 131

(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. 132 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

131 "Nothing about Us, Without Us", International Day of Disabled Persons: Themes and Observances of Previous Years, United Nations (2004) < https://www.un.org/esa/socdev/enable/iddp2004.htm#:~:text=The%20motto%20%E2%80%9CNothing%20 About%20Us,and%20with%20persons%20with%20disabilities. >

Article 8(2)(c ) “Encouraging all organs of the media to portray persons with disabilities in a manner 132

consistent with the purpose of the present Convention”.

43 PART G

can foster a deeper understanding and commitment to responsible

portrayal.

75. The appeal shall stand disposed of in the above terms. There shall be no order

as to costs.

76. Pending application(s), if any, stand disposed of.

…..….……………………………………CJI [Dr Dhananjaya Y Chandrachud]

.….…….……………………………………J [J B Pardiwala]

New Delhi;

July 08, 2024

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