Supreme Court issues guidelines on portrayal of persons with disabilities in visual media and films

Introduction

The Supreme Court of India issued guidelines on July 8, 2024, regarding the portrayal of persons with disabilities in visual media and films. The judgment, delivered by a bench consisting of Justices D.Y. Chandrachud and J.B. Pardiwala, arose from the case of Nipun Malhotra vs. Sony Pictures Films India Private Limited^[1].

Factual Background of the Case

The present case was filed by the appellant who is the founder of an organization advocating awareness about disability and rights of the disabled. After being aggrieved with the display and portrayal of the disabled in a movie titled ‘Ankh Micholi’, the applicant raised his objections in the form of a legal notice and claimed that the provisions of Cinematograph Act 1952 and Rights of Persons with Disabilities Act 2016.

According to the appellant, certain medical conditions of the characters were misrepresented and derogatory terms attached to them were used which even included misrepresentation for ‘night blindness’. In reply to the allegations, Sony Pictures stated that the overall intention and message that the movie wanted to deliver was that challenges and stigma attached to the disabilities should be eradicated from the society and there was no Mala Fide attached with the same. Additionally, the Respondents took the defence of their rights to freedom of speech and expression available under Article 19 of the Constitution while the appellant/applicant sought to frame guidelines for creators engaged in creating such content to follow stringent benchmarks while dealing with such sensitive subjects in the society.

Supreme Court’s Observations and Guidelines pertaining to Rights of Persons with Disabilities

The Hon’ble Supreme Court, while deciding upon this matter observed that ‘humour and disability are uneasy companions’ and the true intention and message that the screenplay seeks to deliver must be observed before any such content may be declared as prejudicial. Therefore, under any circumstances, any “Disabling Humour” which aims to discriminate, defame or disparage those who are unfortunate to suffer from disabilities must be eradicated. Moreover, any denigration to those who suffer from such disabilities and their disability not only disparages their self-esteem and dignity but also casts a direct impact upon the society at large leading to further undermining the societal image of the disabled at large.

While relying upon the judgment of Indibly Creative Limited V. Government of West Bengal, ^[2]the Division Bench noted that the freedoms under Article 19(1)(a) of the Constitution of India referred to as the creative freedoms given to media and other agencies cannot be misused or twisted to stereotype, marginalize, lampoon and denigrate those who are already marginalized and placed at a disadvantaged position in the society. Depending upon the facts of each and every case, if the work or overall message of the creation infringes upon the rights of the persons with disabilities, the same cannot be said to be protected under the above provisions of law. However, in cases wherein the stereotypes or degrading portrayals are permissible by the overall message that the film intends to deliver, the right of the filmmaker to retain such portrayal shall also be balanced against the fundamental rights and statutory rights of both the parties.

In the present case, it was also recommended by the appellant/applicant to censor or beep certain parts of the film wherein unwarranted language has been used to point out the disabilities of the characters. However, the Court refused to interfere with the findings of the Censor Board after referring to the disclaimer already provided by the film. Additionally, the court has also noted that the responsibility of the Central Board of Film Certification is not limited to merely certifying the film but also observing as to whether the film complies with the directions and guidelines which are as follows:

1. Language that individualizes 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;

2. Makers should check for exact portrayal of an ailment however much as could reasonably be expected. The deceptive depiction of what a condition, for example, night visual deficiency involves may sustain falsehood about the condition, and dig in generalizations about people with such hindrances, exasperating the disability.

3. Persons with incapacities are under-addressed. Normal individuals know nothing about the boundaries of people that they face. Visual media should mirror their lived encounters. Their depiction should catch the huge numbers of their lived real factors, and ought not be a uni-layered, ableist characterisation.

4. 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.

Conclusion

The directions and guidelines of the Hon’ble Apex Court are in line with the basic constitutional values of the country and the observations of the court also align with the approach of “Anti – Discrimination” and “Protection of Dignity” while affirming the parameters laid down by the Rights of Persons with Disabilities Act along with the precedent set by Vikash Kumar V. UPSC^[3] wherein the court held that there was absolutely no reason as to why the benefits of Fundamental Rights under Part – III of the Constitution should not be extended to the individuals suffering from disabilities.

Last but not the least, the judgment has also practically upheld and implemented the principle that “the language of law ought to be including rather than discriminating.”

^[1] https://webapi.sci.gov.in/supremecourt/2024/8695/8695_2024_1_1501_53517_Judgement_08-Jul-2024.pdf

^[2] https://indiankanoon.org/doc/55820570/

^[3] https://indiankanoon.org/doc/157396742/

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