Lights, Camera, Inclusion?

On July 8th, 2024, the Supreme Court of India ruled in Nipun Malhotra v. Sony Pictures Films India, a case about a challenge to the screening of the movie “Aankh Micholi” for allegedly reinforcing harmful stereotypes about disabilities. The Court made a significant distinction between “disabling humor” and “disability humor”, declaring that “disabling humor”, which demeans and disparages the rights of persons with disabilities, would not be fully protected as freedom of speech under Article 19(1)(a) of the Indian Constitution. The Court emphasized that the creative freedom granted to filmmakers under Article 19(1)(a) does not extend to mocking, stereotyping, misrepresenting, or disparaging marginalized groups, including those with disabilities.

While the judgment provided an in-depth analysis of creative freedom and the rights of persons with disabilities, it stopped short of issuing binding directives. Instead, the Court offered non-binding guidelines and recommendations to certification bodies, explicitly acknowledging that judicial interference in such matters would be rare. While highlighting important issues, this approach of the Court lacks the teeth necessary to effect meaningful change in how disabilities are portrayed in media.

The Case of Aankh Micholi

The case concerns a petition challenging the screening of the movie “Aankh Micholi” (which means “Hide and Seek”). The petitioner, a Disability Rights activist, contended that the movie reinforces harmful stereotypes, promotes inequality, and fails to foster empathy toward individuals with disabilities. By highlighting specific instances of perceived misrepresentation and offensive language in the film, the petitioner sought to demonstrate a pattern of insensitivity and misconception. Furthermore, the petitioner extended the critique to the regulatory body, asserting that the Central Board of Film Certification has neglected its statutory duty in certifying the film.

Indian Supreme Court’s (im)balance

The Supreme Court of India, in its judgment, addressed the delicate balance between creative freedom in filmmaking and the rights of persons with disabilities. The Court reaffirmed the importance of freedom of speech and expression, recognizing it as a fundamental right protected under Article 19(1)(a) of the Indian Constitution. It acknowledged that filmmakers’ right to exhibit films falls within this freedom. However, the Court also emphasized that this freedom is not absolute and can be subject to reasonable restrictions under Article 19(2), particularly when it comes to matters of decency and morality.

In discussing the rights of persons with disabilities, the Court highlighted the shift from a medical model to a social model of disability, as reflected in the Rights of Persons with Disabilities Act, 2016 (RPwD Act). The medical model of disability explains disability as resulting from a health condition, disease, or trauma that can disrupt a person’s physiological or cognitive functioning. In contrast, the social model of disability emphasizes the barriers that people with disabilities face, rather than focusing on the impairments and deficits of the individual with a disability. The Court emphasized the importance of dignity, equality, and non-discrimination for persons with disabilities. The Court noted that historically, media portrayals of persons with disabilities have often been oppressive and stereotypical, which can reinforce negative attitudes and hinder their full participation in society. The Court drew a distinction between “disabling humor” which demeans and disparages persons with disabilities, and “disability humor” which challenges conventional wisdom about disability (para. 66). It suggested that context, intention, and overall message must be considered when evaluating portrayals of persons with disabilities in media (para. 63).

Regarding the present case of the movie “Aankh Micholi”, the Court declined to interfere with the certification granted to the film by the Central Board of Film Certification (CBFC). It reiterated its stance on minimal interference with decisions of expert bodies like the CBFC, especially when it comes to allowing the exhibition of a film. The Court noted that the certification implied that the Board found the overall message of the film to be in accordance with the guidelines and the RPwD Act. While the Court did not issue new guidelines or direct changes to the composition of certification bodies, it provided a framework for consideration in the portrayal of persons with disabilities in visual media. This framework emphasizes inclusive language, accurate representation, diverse portrayals, and collaboration with disability advocacy groups (para. 74).

Supreme Court’s Seek and Hide

The Indian Supreme Court’s approach in this judgment reflects a careful balancing act between freedom of expression and protections against discriminatory portrayals, while ultimately leaning towards prioritizing expressive freedoms. This prioritization is evident in several aspects of the ruling. First, the Court reaffirms the principle of minimal interference with the decisions of expert bodies under the Cinematograph Act, stating that, “we endorse slow interference with the determination of an expert body under the Cinematograph Act, particularly to allow the exhibition of a film” (para. 72.1). This deference to the existing certification process suggests a reluctance to impose additional judicial constraints on creative expression. Furthermore, the Court explicitly recognizes the filmmaker’s creative freedom under Article 19(1)(a), while acknowledging its limits, that the creative freedom of the filmmaker under Article 19(1)(a) cannot include the freedom to lampoon, stereotype, misrepresent or disparage those already marginalized. However, the Court stops short of providing a clear mechanism for enforcing this limitation, instead leaving it largely to the discretion of the certification bodies. This approach prioritizes the existing framework of speech regulation over introducing new judicial interventions.

The distinction between “disabling humor” and “disability humor”, while potentially useful as a heuristic device, does not substantially alter the fundamental approach to assessing speech under Article 19(2) of the Constitution. The Court’s approach stipulates a sliding scale of scrutiny rather than a clear-cut distinction between protected and restricted speech. Moreover, the lack of precise definitions for terms further complicates their application, especially given the varied contexts in which media content can be consumed in the digital age. This ambiguity makes it challenging for creators to confidently judge whether their work adheres to the guidelines or potentially infringes on the rights of persons with disabilities. Subsequently, the Court’s emphasis on analyzing films as a whole, considering their overall message, only protects the creators working in good faith.

In its reasoning, the Court also adopted an overly broad harm-based approach when dealing with speech potentially affecting marginalized communities. As Anmol Jain argued, this expansive interpretation of harm includes social exclusion and negative attitudes. While acknowledging the Court’s intention to protect vulnerable groups, Jain warns that this approach risks increased judicial paternalism and a shift from individual-centric to community-centric free speech analysis, potentially stifling diverse voices in public discourse.

Furthermore, the Court’s reluctance to recommend specific changes to the film certification process further underscores this prioritization. For instance, it declined to mandate the inclusion of disability experts on certification panels, noting that “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). This stance reflects a preference for preserving the existing balance of speech regulation rather than imposing additional restrictions.

The Court’s treatment of potentially problematic language and portrayals is also telling. While acknowledging that language disparaging persons with disabilities marginalizes them further and adds to the barriers in their social participation, the Court qualifies this by adding “without the redeeming quality of the overall message of such portrayal” (para. 74). This caveat allows for potentially discriminatory elements if justified by the film’s broader context, prioritizing artistic expression over blanket protections against negative portrayals. Moreover, the Court explicitly states that as long as the film’s overall message justifies the depiction of disparaging language being used against persons with disabilities, it cannot be subjected to restrictions beyond those placed in Article 19(2). This indicates that freedom of expression, as protected by Article 19(1)(a), takes precedence over additional restrictions that might offer stronger protections against discriminatory portrayals.

While the Court does provide a framework for the respectful portrayal of persons with disabilities, it explicitly frames these as recommendations rather than binding constitutional requirements. The Court noted that representation of persons with disabilities must regard the objective social context of their representation and not marginalize persons with disability but it follows this with a list of suggestions rather than mandates. This approach allows for continued flexibility in artistic expression while encouraging more sensitive portrayals, further weakening the protection against discrimination. It places the onus on filmmakers and certification bodies to voluntarily adopt more inclusive practices, without providing a robust mechanism for accountability. While well-intentioned, these non-binding guidelines lack the force necessary to effect meaningful change in how disabilities are portrayed in media.

A Missed Opportunity

The Court’s ruling in this case is a missed opportunity for constitutional evolution regarding the limits of free speech when it comes to marginalizing vulnerable groups. While providing a thoughtful framework for portraying persons with disabilities in visual media, the Court could have taken a bolder stance by explicitly recognizing certain forms of “disabling humor” as speech that could be restricted under Article 19(2) of the Constitution. Such an approach would have provided a clearer legal basis for addressing speech that perpetuates harmful stereotypes and further marginalizes vulnerable groups like persons with disabilities.

The Court could have framed this issue through the lens of constitutional morality and public interest, arguing that the perpetuation of demeaning stereotypes about persons with disabilities is contrary to the constitutional values of dignity, equality, and social justice. It could have contended that such speech undermines the objectives of the RPwD Act and impedes the full participation of persons with disabilities in society. Furthermore, the Court could have asserted that there is a compelling state interest in protecting vulnerable groups from further marginalization, which aligns with the directive principles of state policy.

By adopting this approach, the Court could have established a more robust constitutional framework for addressing discriminatory speech against marginalized groups, provided lower courts with clearer guidance on balancing free speech with the rights of vulnerable populations, and signaled a strong commitment to evolving constitutional interpretation in line with changing social awareness about disability rights. However, the Court’s reluctance to expand the interpretation of Article 19(2) reflects a conservative approach to constitutional interpretation. While the guidelines provided are valuable, they lack the legal force of a constitutional ruling. The judgment leaves the rights and dignity of people with disabilities vulnerable, relying on voluntary adoption of inclusive practices rather than enforceable mandates.