SC Issues Guidelines To Visual Media For Guidelines To Visual Media For Portrayal Of Persons With Disabilities

It is most refreshing, most reassuring and most rejuvenating to note that the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Nipun Malhotra vs Sony Pictures Films India Private Ltd in Civil Appeal No. 7230 of 2024 @ Special Leave Petition (C) No. 5239 of 2024 and cited in Neutral Citation No.: 2024 INSC 465 and also in 2024 LiveLaw (SC) 439 that was pronounced most recently on July 8, 2024 in the exercise of its civil appellate jurisdiction has issued a set of commendable guidelines to the visual media to ensure a dignified portrayal of persons with disabilities.

The Apex Court underscored that portrayals which carry negative stereotypes about persons with disabilities would impact their dignity and perpetuate social discrimination against them. It must be noted that a Bench of Apex Court comprising of Hon’ble Mr CJI Dr DY Chandrachud and Hon’ble Mr Justice JB Pardiwala was hearing a challenge to the certification that was granted to the film ‘Aankh Micholi’ produced by Sony Pictures on the ground that the film depicted persons with disabilities in an undignified manner and in a poor light.

While refusing to interfere with the certification granted by the Central Board of Film Certification, the Court used the 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 Rights of Persons with Disabilities Act.” It may be recalled that earlier the Delhi High Court had also held that the relief sought by the appellant was non-maintainable. But it cannot be however lost on us that the most commendable guidelines issued by the Apex Court to the visual media for portrayal of persons with disabilities constitutes the touchstone of this notable judgment and is laid bare in para 74.

Most significantly, it would be in the fitness of things to know what all has been mandated in para 74 which constitutes the “sum and substance” of this learned judgment stating that, “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.[Vikash Kumar (supra) [84]]. As long as the overall message of the film 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).

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. [Jeremy Waldron (supra)]. 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;
• (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;
• (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;
• (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; “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. >
• (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. Article 8(2)(c) “Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention”. Collaboration with disability advocacy groups can provide invaluable insights and guidance on respectful and accurate portrayals, ensuring that content aligns with the lived experiences of persons with disabilities; and
• (ix) Training and sensitization programs should be implemented for individuals involved in creating visual media content, including writers, directors, producers, and actors. These programs should emphasize the impact of their portrayals on public perceptions and the lived experiences of persons with disabilities. Topics should include the principles of the social model of disability, the importance of respectful language, and the need for accurate and empathetic representation. Regular workshops and collaboration with disability advocacy groups can foster a deeper understanding and commitment to responsible portrayal.”

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr CJI Dr DY Chandrachud for a Bench of Apex Court comprising of himself and Hon’ble Mr Justice JB Pardiwala sets the ball in motion by first and foremost putting forth in para 2 that, “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’.”  

As we see, the Bench discloses in para 3 that, “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.”

To put things in perspective, the Bench envisages in para 4 while dwelling on the factual background that, “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.”

As it turned out, the Bench enunciates in para 5 that, “The appellant claims that the film violates the constitutionally protected rights of persons with disabilities; and the provisions of the Cinematograph Act, 1952 (“Cinematograph Act”) and the Rights of Persons with Disabilities Act 2016 (“RPwD Act”). The appellant claims that the Central Board of Film Certification (“CBFC”/“The Board”) has violated its statutory duty to certify films in accordance with the applicable guidelines.”

Be it noted, the Bench notes in para 7 that, “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 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.”

It is worth noting that the Bench notes in para 8 that, “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.”

Most remarkably, the Bench postulates in para 51 that, “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.”

Do note, the Bench notes in para 52 that, “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. (Ibid).

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 enjoy their rights. The media’s power to shape attitudes and create awareness is a vital component of this enabling environment.”

Most forthrightly, the Bench propounds in para 70 that, “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. (F.A. Picture International v. Central Board of Film Certification, 2004 SCC OnLine Bom 961 [12] as cited in Indibly (supra) [35]). Similarly, if the overall message of the work infringes the rights of persons with disabilities, it is not protected speech, obviating the need for any balancing. However, in appropriate cases, if stereotypical/disparaging portrayal is justified by the overall message of the film, the filmmaker’s right to retain such portrayal will have to be balanced against the fundamental and statutory rights of those portrayed.”

Most forcefully, the Bench articulates in para 73 expounding that, “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). 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.”

All told, the Apex Court has very rightly held that the persons with disabilities should not be lampooned. It also merits no reiteration that the most commendable guidelines issued by the Apex Court in this leading case to visual media for portrayal of persons with disabilities must be strictly adhered to in letter and spirit.

We thus see that the Apex Court while refusing to interfere with the certification that was granted by the Central Board of Film Certification made it amply clear that the portrayal of persons with disabilities in visual media must be done properly that aligns with the anti-discrimination and dignity-affirming objectives of the Constitution as well as the Rights of Persons with Disabilities Act.

Written by:

Sanjeev Sirohi, Advocate, s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave, Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.

*Published as recieved.