Controversial film ‘Unfreedom’ launches on Netflix despite not receiving CBFC certificate

As per reports, Raj Amit Kumar’s provocative directorial debut ‘Unfreedom’ starring Adil Hussain and Victor Banerjee has launched on Netflix despite not being certified by Central Board of Film Certification (CBFC). The movie is available for streaming on Netflix globally.

Unfreedom was rejected certification by Pahlaj Nihalani led CBFC in 2015.  The CBFC was of the opinion that the film will ignite unnatural (read homosexual) passions and incite rapes and communal violence in India. Initially, the film was under review by CBFC who wanted director Raj Amit Kumar to cut crucial elements from the film in order to be shown to the Indian public. Raj Amit Kumar thereafter appealed before Film Certification Appellate Tribunal, (FCAT) which also rejected to grant certification to the film without any possibility of cutting or further appeals.

‘Unfreedom’ is a contemporary thriller based in a society torn apart by political, religious and sexual turmoil. Alternating between New York and New Delhi, the film combines two powerful stories about religious fundamentalism and intolerance. One of which follows a Muslim terrorist Husain (Bhanu Uday), attempting to silence a liberal Muslim scholar Fareed (Victor Banerjee). The other story is about a young woman Leela (Preeti Gupta), who defies her devout father Devraj (Adil Hussain) and escapes an arranged marriage because she is secretly involved in a taboo lesbian romance with Sakhi (Bhavani Lee). Through these stories, the film creates a powerful portrait of the troubled times we live in and depicts the lengths to which the protagonists go in order to hold on to their strong and conflicting viewpoints on freedom, faith, family, and love.

In my post here, I had covered the censorship issues on OTT platforms. As mentioned in my earlier post, in the case of Super Cassettes Industries Limited v/s Central Board of Film Certification & Ors, the Delhi High Court dealt with the issue on whether audio-visual recordings on DVDs and VCDs which the Petitioners sell in the market, but with the label that it is meant only for private viewing, requires certification by the Central Board of Film Certification under Section 5-A of the Cinematograph Act, 1952. The Delhi High Court observed that film meant for private viewing would not be exempt from certification by CBFC and held as under:

“The mere labelling by the film maker or distributor that the film is meant for private viewing will not exempt the film from prior certification under Section 5-A CG Act. Once it leaves the shop where the film is purchased, neither the maker of the film nor its seller, has any control on whether it is viewed by one person or by a hundred, or whether it is viewed in a place to which the public is invited or in the private confines of a home. Therefore, the interpretation of the words public exhibition‟ has to necessarily be contextual keeping in view the essential purpose of the CG Act and the insertion of Section 52A in the CR Act. In view of the amendments to the CR Act as impacting on the CG Act, what constitutes public exhibition‟, both for the purposes of Section 52A CR Act and Section 5-A CG Act, is no longer confined to exhibition in a cinema hall. Even if there is no audience gathered to watch a film in a cinema hall but there are individuals or families watching a film in the confines of their homes, such viewers would still do it as members of the public and at the point at which they view the film that would be an exhibition of such film.”

Applying the Delhi High Court judgement, OTT platforms showing cinematograph films would fall under the ambit of the Cinematograph Act and may require certification from CBFC. As pointed out earlier, in my view, this would be a dangerous interpretation. Even though ‘public exhibition’ has not been defined under the Cinematograph Act, 1952, the Act intends to regulate cinematographic films for public exhibition in a place licensed under Section 10 of the Act. A concerned legislation which deals with a particular platform, may require that a film shown on the platform should be certified by CBFC for public exhibition. For instance the Programme Code (Rule 6 of the Cable Television Network Rules, 1994) requires under Rule 6(o) that no film or film song or film promo or film trailer or music video or music albums or their promos, whether produced in India or abroad, shall be carried through cable service unless it has been certified by the Central Board of Film Certification (CBFC)) as suitable for unrestricted public exhibition in India. The explanation to the said proviso provides that the expression “unrestricted public exhibition” shall have the same meaning as assigned to it in the Cinematograph Act, 1952 (37 of 1952); Therefore, the Cinematograph Act cannot regulate content on cable services or internet platforms but the concerned regulations governing these platforms can.

As mentioned here, the I&B Ministry has constituted a committee to frame and suggest a regulatory framework for online media/news portals including digital broadcasting and entertainment/infotainment sites and news/media aggregators. Once such regulation comes into place, it would regulate the content shown on OTT Platforms.  In the absence of any such regulation, the OTT platforms continue to remain unregulated. Arguably, Netflix is not flouting any laws by showing a cinematograph film which has not been certified by CBFC.

Image source: here