Thursday, May 6, 2021

SC directed to reform Tribunals, Union removed them!

The Supreme Court wanted the Centre to reform various tribunals under different enactments so that there will not be more aggrieved persons, and that there will not be repeated appeals to apex judicial body. In Madras Bar Association v Union of India, the SC gave a landmark order on 27 November 2020 to appoint independent experts as members of tribunals through judicial supervision. The SC said: “The Government is, accordingly, directed to strictly adhere to the directions given above and not force the Petitioner-Madras Bar Association, which has been relentless in its efforts to ensure judicial independence of the Tribunals, to knock the doors of this Court again”.The Government removed the tribunals so that doors of High Courts are repeatedly knocked. Abolition of all appellate tribunals under eight enactments will have cascading effect of burdening the High Courts.

The Centre has replaced the existing appellate authorities in nine laws and vested those powers in the High Courts through an ordinance, the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance 2021, promulgated on April 4.

Besides the body under Cinematography Act, 1952, the Appellate Tribunals under Trademarks Act, 1999, Customs Act 1962, Patents Act 1970, the Geographical Indications of Goods (Registration and Protection) Act, 1999, were also scrapped and replaced with the High Courts. The Tribunal under the Control of National Highways (Land and Traffic) Act, 2002, was also abolished and appeals are directed to civil court. The appellate board under Copyright Act, 1957 is replaced with Commercial Court or Commercial Division of a High Court. The Airport Appellate Tribunal under the Airports Authority of India Act, 1994 was abolished and the disputes now need to go to Central Government in some areas, while from the orders of eviction officers, the appeals have to be taken to High Courts.

So called process of rationalisation of tribunals began in 2015. Government has passed the Finance Act, 2017, to abolish seven tribunals or merged based on functional similarity and their total number was reduced to 19 from 26.

Censorship issues

The Tribunals Reforms Bill, though was introduced in the Lok Sabha in February, could not be taken up for consideration. Then immediately the President later issued the ordinance, which scraps the Film Certification Appellate Tribunal (FCAT), a statutory body that had been set up to hear appeals of filmmakers against decisions of the Central Board of Film Certification (CBFC), and transfers its function to other existing judicial bodies. The ordinance has amended The Cinematograph Act, 1952, and replaced the word ‘Tribunal’ with ‘High Court’.

Now there can be no appeals from the atrocious orders of Censor Board. Either the producer has to silently suffer or move to High Court and wait years for ‘justice’. The Modi government brought a new kind of censorship on cinemas. It has abolished Film Certification Appellate Tribunal, through an ordinance.

The FCAT has been established in 1983 as a statutory body under the Cinematograph Act, headed by a member from the legal fraternity. Before the FCAT, filmmakers had no option but to approach the court to seek redressal against CBFC certifications or suggested cuts. The FCAT was helping with quick decisions, and only when the FCAT decision was not satisfactory, the film makers were going to High Court.

After being made, the films meant for distribution in theatres should be submitted for certification. They Central Board of Film Certification is required to certify film as ‘U’ (unrestricted public exhibition), ‘UA’ (unrestricted public exhibition subject to parental guidance for children below the age of 12), ‘A’ (restricted to adult audiences) or ‘S’ (restricted to specialised audiences such as doctors or scientists). The CBFC is an examining committee. There is a revising committee to relook into the decision of the CBFC

Producers have to go to high courts directly

Now, after this Ordinance, any producer if aggrieved by the undue cuts and censors, the film producers must directly go to High Courts to get movie cleared for exhibition. This new pen stroke had invited the tides of adverse comments from cinema media personalities as new censorship on expression.  The Tribunal Reforms Ordinance 2021 which was promulgated on 10th April, does not reform but removed this appellate tribunal under Cinematography Act. Not only FCAT, but several other Tribunals were amalgamated in the name of rationalization.

The Film Certification Appellate Tribunal was a statutory body established in 1983 under the Cinematograph Act, 1952, by the Ministry of Information & Broadcasting. The FCAT was hearing appeals filed under Section 5C of the Cinematograph Act by those aggrieved by the decision of the CBFC.

That tribunals were not functioning well does not mean that it should be abolished. They were deliberately starved of members, staff and funds besides not appointing or appointing ‘follower’s the judicial and technical members instead of field experts.

CBFC decisions controversial

In recent times, the orders of Censor Board of Film Certification were controversial. The FCAT gave relief to Shaheb Bibi Golaam and Lipstick Under My Burkha films which were objected to by the CBFC and paved way for their release in 2016. The decision to deny certification to Shubhradeep Chakravorty and Meera Choudhary’s film En Dino Muaffarnagar was also criticised as unreasonable.

The Anti Indian, the debut film of C Ilamaran was refused certification by Examining Committee of CBFC. It was referred to revising committee. FCAT used to charge normal fee, hold screening and pass judgements soon. Similarly Tamil Film Gypsy by Raju Murugan could be released because of the Revising Committee which reduced the cuts. As he was pressed for time, he rushed to theatre avoiding journey through Tribunal with those cuts only.

Filled with persons close to ruling party 

Most of the decisions of the Central Board are subject to criticism because it has been allegedly filled by the personalities close to ruling party, whether Congress or BJP. Some Chairpersons were openly exhibiting their bias and taking drastic decisions against some movies like banning them or suggesting substantive cuttings of scenes and dialogues. The Constitutional guarantee of freedom of expression was under attack because of some of orders of the Board.

Now the High Court judges must watch movies and decide. Leena Manimekelai’s first film Sengadal, The Deadsea was banned and second movie Maadathy, An Unfair Tale was struck with refusal by CBFC. Now Leena must wage a legal battle or cut the movie into pieces as per the wishes of Board. The producer must risk more money and time while the already overburdened Constitutional courts should suffer more filings. If the producer fails to convince the Board, his expression will be curtailed. This is a different way of curbing the artistic expression.

After imposing restrictions Over the Top (OTT) streaming, this Ordinance is a blow on the Cinema expression.

National Tribunals Commission

The Supreme Court order in Madras Bar association v Union of India recommended constitution of National Tribunals Commission to act as an independent body to supervise the appointments and functioning of Tribunals, conduct disciplinary proceedings against members of tribunals and also take care of administrative and infrastructural needs of the Tribunals. Instead of creating such umbrella organization the Government has ‘reformed’ tribunals by removal or amalgamation.

The apex court bench of L Nageswar Rao, Hemant Gupta and Ravindra Bhat, JJ in this case (https://indiankanoon.org/doc/66126971/) on 27th November 2020, held: The Union of India shall constitute a National Tribunals Commission which shall act as an independent body to supervise the appointments and functioning of Tribunals, as well as to conduct disciplinary proceedings against members of Tribunals and to take care of administrative and infrastructural needs of the Tribunals, in an appropriate manner. Till the National Tribunals Commission is constituted, a separate wing in the Ministry of Finance, Government of India, shall be established to cater to the requirements of the Tribunals.

Load on judiciary

The SC was conscious about the case load on judiciary because of wrongful decisions of tribunals headed by non-experts of the subject. The judges wrote: “Upon the tribunals has devolved the task of marking boundaries of what is legally permissible and feasible (as opposed to what is not lawful and is indefensible) conduct, in a normative sense guiding future behaviour of those subject to the jurisdictions of such tribunals. This task is rendered even more crucial, given that appeals against their decisions lie directly to the Supreme Court and public law intervention on the merits of such decisions is all but excluded. Also, these tribunals are expected to be consistent, and therefore, adhere to their precedents, inasmuch as they oversee regulatory behaviour in several key areas of the economy. Therefore, it is crucial that these tribunals are run by a robust mix of experts, i.e. those with experience in policy in the relevant field, and those with judicial or legal experience and competence in such fields. The functioning or non-functioning of any of these tribunals due to lack of competence or understanding has a direct adverse impact on those who expect effective and swift justice from them. The resultant fallout is invariably an increased docket load, especially by recourse to Article 226 of the Constitution of India.

“These aspects are highlighted once again to stress that these tribunals do not function in isolation but are a part of the larger scheme of justice dispensation envisioned by the Constitution and must function independently, and effectively, to live up to their mandate. The involvement of this Court, in the series of decisions, rendered by no less than six Constitution Benches, underscores the importance of this aspect. The role of both the courts as upholders of judicial independence, and the executive as the policy making and implementing limb of governance, is to be concordat and collaborative. This Court expects that the present directions are adhered to and implemented, so that future litigation is avoided”.

But the Government did not heed to this advice and decided to abolish the tribunals increasing the case load of High Courts. There were Justice Mukul Mudgal and Shyam Benegal Committees that studied the FCAT and made several recommendations, but never asked for abolition of FCAT. 

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is former Central Information Commissioner and Professor of Law at Bennett University

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