New Delhi: Creative freedom does not entail freedoms to lampoon, stereotype, or disparage those already marginalised, the Supreme Court said Monday, issuing guidelines for the visual media to ensure a dignified portrayal of persons with disabilities.
A three-judge bench led by Chief Justice D.Y. Chandrachud observed that if the overall message of a visual work infringes upon the rights of persons with disabilities, the protections under Article 19(1)(a) of the Constitution, providing the freedom to express freely, will not apply to it.
Such work would include satirical speech that furthers the marginalisation and disenfranchisement of the already vulnerable, one that entrenches stereotypes and is opposed to the dignity of persons with disabilities.
In appropriate cases, if the stereotyping or disparaging portrayal is justifiable, considering the overall message of the film as a voice against the discrimination of persons with disabilities, the right of a filmmaker to retain such a scene would have to be balanced against the fundamental rights of those portrayed in it, the court said.
In an attempt to strike a balance between the two competing rights, that of a filmmaker to express freely and that of persons with disabilities to live with dignity, the court held, “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).”
The pronouncement means that the restrictions provided under Article 19(2), that is, the conditions based on which there can be a prohibition on free speech and expression, including in creative works, will only come into play if the overall message of a visual product such as a film justifies the depiction of disparaging language against persons with disabilities.
The court ruling came on an appeal filed by Nipun Malhotra, an activist with disabilities. Malhotra had challenged the certificate granted to the film Aankh Micholi, produced by Sony Pictures. The Central Board of Film Certification (CBFC) approved its release on 3 November last year with an ‘U’ certificate, allowing unrestricted public exhibition.
Malhotra first approached the Delhi High Court with his plea to stop the release, claiming the movie misrepresented and used derogatory terms for persons with disabilities.
When the HC declined to entertain his plea, saying Malhotra had not disputed the explanation by Sony that the overall message of the film was overcoming disability and the strength of its characters, Malhotra moved the top court.
In its judgment Monday, the court did not interfere with the certificate granted to the movie nor its release. It even turned down a request by Malhotra to beep out parts of the film. However, the court endorsed “slow interference with the determination of an expert body under the Cinematograph Act, particularly to allow the exhibition of a film”.
“It is for the board to draw the line between permissible and impermissible portrayal of social ills through visual media and ensure that the guidelines are meant to be read as broad standards for the same. The certification in the present case implies that the board found that the overall message of the film was in accordance with the guidelines and the law,” the court said.
However, the top court used the opportunity to lay down a broad framework for how a filmmaker should portray persons with disabilities. It analysed international and national jurisprudence on disability to issue nine guidelines.
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‘Don’t use patronising language, disabling humour’
The guidelines advise against the use of words such as “cripple” and “spastic” that promote institutional discrimination or devalues societal perceptions about persons with disabilities, contribute to negative self-image and perpetuate discriminatory attitudes and practices in society. The court said that even language that individualises impairment and overlooks the disabling social barriers should adequately get flagged as contrary.
The court asked the creators to check for an accurate representation of a medical condition as much as possible so that there is no misleading portrayal of a disability such as blindness, saying that such portrayals can deepen and aggravate the disability.
Observing that media portrayal of persons with disabilities has been “historically oppressive, disparaging”, the court counselled the visual media to strive to depict the diverse realities of persons with disabilities and showcase not only their challenges but also their talents, success and contributions.
Saying that stereotypical portrayals have created the understanding that disability is an anomaly in a normative framework of ability, the court added that a balanced representation would promote an inclusive understanding.
Persons with disabilities should not face lampooning based on myths nor be made presentable as “super cripples” — a stereotype that implies they have extraordinary heroic abilities and then merit dignified treatment.
Asking the decision-making bodies to value participation, the court called for constituting statutory committees under the Cinematograph Act and Rules to invite expert opinions to assess the overall message of films and their impact on the dignity of individuals.
To encourage a portrayal of persons with disabilities consistent with international norms on disability, collaboration with disability advocacy groups can provide invaluable insights and guidance on respectful and accurate portrayals. Such collaborations, the court said, would ensure that the content aligns with the lived experiences of persons with disabilities.
The bench also underscored holding training and sensitisation programmes for those creating visual media content, including directors, producers and actors. These programmes, it added, should emphasise the impact of their portrayals on public perceptions and the lived experiences of persons with disabilities.
Saying that the historical representation of persons with disabilities as evil, objects of pity, violence, curiosity, ridicule, or burdens on society, the court added that such disabling imagery formed the “bedrock” of the negative attitude towards them.
Recurrent negative portrayals and frequent use of patronising and offensive language such as “victim”, “differently abled”, or “unfortunate” to describe persons with disabilities continue to perpetuate negative attitudes towards them, the court said, flagging concerns over discrimination against the community.
They, the court said, not only impact persons with disabilities but also exacerbate systemic inequalities and inhibit their dignified participation in the public sphere for education or employment. They, it added, also shape and strengthen the already-existing negative assumptions about their abilities.
On whether freedom of speech and expression would extend to visual work that entrenches stereotypes about persons with disabilities, the court said that this right under the Constitution is the most cherished one, and the social debate around it has led to diverse views expressed by various sections of the society. However, normative stereotypes about gender, identity, sexual orientation, and disability deprive certain groups of participating in such a debate, offending their right to participate through free speech.
The court held that any expression that is otherwise acceptable because it promotes discourse but targets the marginalised may confirm and strengthen prejudices against the group in question, further disenfranchising them, and so, such expression may not enjoy complete constitutional protection.
However, only after considering the context, intention, and overall message of a visual work can a decision be taken to term it as prejudicial towards the vulnerable community, said the court, drawing distinctions between “disabling humour” and “disabled humour”. While the first demeans and disparages persons with disability, the second challenges conventional wisdom about disability, added the court.
“Humour and disabilities are viewed as uneasy companions. This is primarily because of the historical use of humour to mock disability, make jokes at the expense of persons with disabilities, and to use them for comic relief,” the court said.
But this understanding, the court underlined, is obsolete under the current social model, which views disability as a function of social barriers that curb the potential of persons with disabilities.
(Edited by Madhurita Goswami)
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