# Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors

- **Citation:** 2024 INSC 465
- **Court:** Supreme Court of India
- **Decided:** 2024-07-08
- **Case number:** Civil Appeal No. 7230 of 2024
- **Bench:** Dr Dhananjaya Y Chandrachud, J B Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nipun-malhotra-v-sony-pictures-films-india-private-limited-ors-37899
- **Pages:** 41

## Headnote

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'. The appellant seeks
guidelines against filmmakers, regarding the provisions of the
Right of Persons with Disabilities Act, 2016 and the composition
of the Board and the Advisory panel under the Cinematograph Act
and recommendations to beep certain parts of the present film
as well.The issues arises for consideration include the impact of
the provisions of RPwD Act 2016 on the certification of films and
under the Cinematograph Act.
Headnotes†
Cinematograph Act, 1952 - Rights of Persons with Disabilities
Act 2016 - The appellant seeks recommendations to beep
certain parts of the present film as well:
Held: This Court endorses 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 RPwD Act - This Court is not inclined to interfere with this
finding by recommending beeping out parts of the film, especially
considering the inclusion of a disclaimer in the film.[Para 72.1]
Cinematograph Act, 1952 - Rights of Persons with Disabilities
Act 2016 - Recommendation that Sony Pictures make an
awareness film according to Section 7 (d) of the RPwD Act:
* Author
[2024] 7 S.C.R.
247
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
Held: The recommendation that Sony Pictures make an
awareness film according to Section 7 (d) of the RPwD Act cannot
be granted - Section 7(d) is directed towards the appropriate
government - This Court has underlined that the principle of
reasonable accommodation includes positive obligations of private
parties to support persons with disabilities and facilitate their full
participation, this Court does not agree that Section 7(d) includes
such an obligation against private persons - Even otherwise, such
a direction would amount to compelled speech - Such compelled
speech has been allowed by this Court under Article 19(1) of the
Constitution, albeit in a very different context from the present -
The recommendation sought in the present case is for creation
of a whole different film on the ground of a statutory mandate of
spreading awareness which is not even directed towards a private
entity such as Sony Pictures - The positive obligation mentioned
in Vikash Kumar cannot be so extended to compel speech in the
manner suggested by the appellant. [Para 72.2]
Cinematograph Act, 1952 - Rights of Persons with Disabilities
Act 2016 - Cinematograph (Certification) Rules 1983 -
Cinematograph (Certification) Rules, 2024 - Inclusion of
subject matter experts to the Board and advisory panels:
Held: On inclusion of subject matter experts to the Board and
advisory panels, this Court believes that the field is sufficiently
occupied by the Cinematograph Act and the certification Rules
of 1983 and 2024 does not merit interference - Under the 1983
Rules, the Board may take steps to assess public reactions
to films - The Examining Committee is supposed to include
women as its members - The 1983 Rules and the 2024 Rules
envisage consultation with a subject matter expert: the Examining
Committee's final report is forwarded to the Chairperson in 10 days,
unless the Committee feels that expert opinion is necessary - In
that case, it may submit a provisional report and seek expert
opinion before submitting the final report - The 2024 Certification
Rules go a step further and provide that a Regional Officer may
invite subject matter experts for the examination of the film by
the Examination Committee or Revising Committee.

## Text

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[2024] 7 S.C.R. 246 : 2024 INSC 465
Nipun Malhotra
v.
Sony Pictures Films India Private Limited & Ors.
(Civil Appeal No. 7230 of 2024)
08 July 2024
[Dr Dhananjaya Y Chandrachud,* CJI and
J B Pardiwala, J.]
Issue for Consideration
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'. The appellant seeks
guidelines against filmmakers, regarding the provisions of the
Right of Persons with Disabilities Act, 2016 and the composition
of the Board and the Advisory panel under the Cinematograph Act
and recommendations to beep certain parts of the present film
as well.The issues arises for consideration include the impact of
the provisions of RPwD Act 2016 on the certification of films and
under the Cinematograph Act.
Headnotes†
Cinematograph Act, 1952 - Rights of Persons with Disabilities
Act 2016 - The appellant seeks recommendations to beep
certain parts of the present film as well:
Held: This Court endorses 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 RPwD Act - This Court is not inclined to interfere with this
finding by recommending beeping out parts of the film, especially
considering the inclusion of a disclaimer in the film.[Para 72.1]
Cinematograph Act, 1952 - Rights of Persons with Disabilities
Act 2016 - Recommendation that Sony Pictures make an
awareness film according to Section 7 (d) of the RPwD Act:
* Author
[2024] 7 S.C.R.
247
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
Held: The recommendation that Sony Pictures make an
awareness film according to Section 7 (d) of the RPwD Act cannot
be granted - Section 7(d) is directed towards the appropriate
government - This Court has underlined that the principle of
reasonable accommodation includes positive obligations of private
parties to support persons with disabilities and facilitate their full
participation, this Court does not agree that Section 7(d) includes
such an obligation against private persons - Even otherwise, such
a direction would amount to compelled speech - Such compelled
speech has been allowed by this Court under Article 19(1) of the
Constitution, albeit in a very different context from the present -
The recommendation sought in the present case is for creation
of a whole different film on the ground of a statutory mandate of
spreading awareness which is not even directed towards a private
entity such as Sony Pictures - The positive obligation mentioned
in Vikash Kumar cannot be so extended to compel speech in the
manner suggested by the appellant. [Para 72.2]
Cinematograph Act, 1952 - Rights of Persons with Disabilities
Act 2016 - Cinematograph (Certification) Rules 1983 -
Cinematograph (Certification) Rules, 2024 - Inclusion of
subject matter experts to the Board and advisory panels:
Held: On inclusion of subject matter experts to the Board and
advisory panels, this Court believes that the field is sufficiently
occupied by the Cinematograph Act and the certification Rules
of 1983 and 2024 does not merit interference - Under the 1983
Rules, the Board may take steps to assess public reactions
to films - The Examining Committee is supposed to include
women as its members - The 1983 Rules and the 2024 Rules
envisage consultation with a subject matter expert: the Examining
Committee's final report is forwarded to the Chairperson in 10 days,
unless the Committee feels that expert opinion is necessary - In
that case, it may submit a provisional report and seek expert
opinion before submitting the final report - The 2024 Certification
Rules go a step further and provide that a Regional Officer may
invite subject matter experts for the examination of the film by
the Examination Committee or Revising Committee. [Para 72.3]
Cinematograph Act, 1952 - Rights of Persons with Disabilities
Act 2016 - Cinematograph (Certification) Rules 1983 -
Cinematograph (Certification) Rules, 2024 - Disparaging
portrayal of person with disabilities:
248
[2024] 7 S.C.R.
Digital Supreme Court Reports
Held: The Board must decide whether a disparaging portrayal stood
redeemed by the overall message or not - No doubt this entails a
complex balancing of interests - It would be ideal if the statutory
bodies included subject matter experts - The 2024 Rules are a
welcome acknowledgment of this principle and consultations with
subject matter experts on disability would certainly better inform
the perspective of the Board - The policy underlying the Act and
the Rules already accounts for expert consultation - This Court
cannot interfere merely because it could be better or that a better
alternative is available, when the legality of such policy is not in
question. [Para 72.5]
Cinematograph Act, 1952 - Rights of Persons with Disabilities
Act 2016 - Cinematograph (Certification) Rules 1983 -
Cinematograph (Certification) Rules, 2024 - The appellant
has sought formulation of guidelines to restrict content that
contravenes the Constitution and the RPwD Act 2016:
Held: The guidelines under the Act are quite extensive and cover
the field - Such directions are issued to fill legislative gaps - If
allowed, such guidelines would be akin to reading the provisions
of one statute that is, the RPwD Act 2016 into another statute,
that is the Cinematograph Act, even though the latter does not
suffer from a vacuum on the issue, and the statutory expert body
is presumed to have account for the effect of the former anyway -
Courts cannot trench into policy-making. [Para 72.6]
Constitution of India - Art. 19 - Cinematograph Act, 1952 -
Rights of Persons with Disabilities Act 2016 - Cinematograph
(Certification) Rules 1983 - Cinematograph (Certification)
Rules, 2024 - Provision of 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 - The framework
is laid down is in line with findings in Vikash Kumar case
where it was emphasised that fundamental rights under Part
III of the Constitution apply with equal rigour to persons with
disabilities:
Held: The 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
[2024] 7 S.C.R.
249
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
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 underrepresented - 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; (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; (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; (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; (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. [Para 74]
250
[2024] 7 S.C.R.
Digital Supreme Court Reports
Cinematograph Act, 1952 - Rights of Persons with Disabilities
Act 2016 - Disability humour and Disabling humour:
Held: 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 - This Court must distinguish 'disabling
humour' that demeans and disparages persons with disability from
'disability humour' which challenges conventional wisdom about
disability - While disability humour attempts to better understand
and explain disability, disabling humour denigrates it - The two
cannot be equated in their impact on dignity and on stereotypes
about persons with disabilities. [Para 66]
Constitution of India - Art. 19(1)(a) - Cinematograph Act, 1952 -
Fundamental right to freedom of speech and expression -
Cinematograph Act, an instance of reasonable restriction:
Held: A filmmaker's right to exhibit films is a part of their fundamental
right to freedom of speech and expression under Article 19(1)(a),
which is subject to reasonable restrictions under Article 19(2) - The
Cinematograph Act is an instance of reasonable restrictions on this
right under the 'decency and morality' rubric of Article 19(2) - Prior
certification under the Act has been regarded as a valid restraint
on cinematic speech because of its 'instant appeal' and the ability
to stir emotions more deeply than other artistic media. [Para 22]
Constitution of India - Art. 19(1)(a) and Art. 19(2) -
Cinematograph Act, 1952 - Restraints on films - Principles:
Held: Restraints on films are founded on principles of due process,
social interest, limited application in cases of absolute necessity
and clear purpose of the restraint - Among the principles which
must be borne in mind when deciding the fitness of a film for
public exhibition include the following: (i) Social impact of the film
is judged from the perspective of an ordinary person of reasonable
intelligence and not a hypersensitive person; (iii) Social change,
rather than orthodox notions or what is right and moral must be
borne in mind; and (iv) The film must be judged by its overall
message and not from isolated depictions of social evils. [Para 25]
Rights of Persons with Disabilities Act 2016 - Core aim:
Held: The RPwD Act represents a fundamental shift from viewing
disability through a charity lens to a human rights perspective -
[2024] 7 S.C.R.
251
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
Its core aim is to empower persons with disabilities by upholding
their inherent dignity and autonomy - The Act broadly underscores
principles of non-discrimination, full and effective participation in
society, and the inclusion of all individuals, emphasizing the respect
for differences and the acceptance of disabilities as an integral
part of human diversity - It enshrines equality of opportunity,
accessibility, gender equality, and the recognition of the evolving
capacities of children with disabilities, ensuring their right to maintain
their identities. [Para 38]
Jurisprudence - International Jurisprudence -Persons with
disabilities - Discussed.
Jurisprudence - Indian Jurisprudence aligns with the human
rights approach - Persons with disabilities - Discussed.
Case Law Cited
Bobby Art International v. Om Pal Singh Hoon [1996] Supp. 2 SCR
136 : (1996) 4 SCC 1; Director General, Directorate General of
Doordarshan & Ors. v. Anand Patwardhan [2006] Supp. 5 SCR
403 : (2006) 8 SCC 433; S Rangarajan v. P Jagjivan Ram and
Ors. [1989] 2 SCR 204 : (1989) 2 SCC 574; Union of India v.
KM Shankarappa [2000] 5 Suppl. SCR 117 : (2001) 1 SCC 582;
Prakash Jha v. Union of India [2011] 10 SCR 496 : (2011) 8 SCC
372; KA Abbas v. Union of India [1971] 2 SCR 446 : (1970) 2 SCC
780; Ramesh v. Union of India [1988] 2 SCR 1011 : (1988) 1 SCC
668; Nachiketa Walhekar v. Central Board of Film Certification
(2018) 1 SCC 778; Anuj Garg v. Hotel Association of India [2007]
12 SCR 991 : (2008) 3 SCC 1; Navtej Singh Johar v. Union of
India [2018] 7 SCR 379 : (2018) 10 SCC 1; Indian Young Lawyers
Association v. State of Kerala [2018] 9 SCR 561 : (2019) 11 SCC
1; Vikash Kumar v. Union Public Service Commission [2021] 12
SCR 311 : (2021) 5 SCC 370; Jeeja Ghosh v. Union of India [2016]
4 SCR 638; Rajive Raturi v. Union of India [2017] 12 SCR 827 :
(2018) 2 SCC 413; Ravindra Kumar Dhariwal v. Union of India
[2016] 4 SCR 638; Sakal Papers (P) Ltd v. Union of India [1962]
3 SCR 842 : (1962) 3 SCR 842; Maneka Gandhi v. Union of India
[1978] 2 SCR 621 : (1978) 1 SCC 248; Indibly Creative Private
Limited v. Government of West Bengal [2019] 5 SCR 679 : 2020
12 SCC 436; In Re Noise Pollution [2005] 1 Suppl. SCR 624 :
(2005) 5 SCC 733; Central Public Information Officer, Supreme
Court of India v. Subash Chandra Agarwal (Civil Appeal No. 10044
252
[2024] 7 S.C.R.
Digital Supreme Court Reports
of 2010); Union of India v. Motion Pictures Association [1999] 3
SCR 875 : (1999) 6 SCC 150; Raj Kapoor v. State [1980] 1 SCR
1081 : (1980) 1 SCC 43; Directorate of Film Festivals v Gaurav
Ashwin Jain [2007] 5 SCR 7 : (2007) 4 SCC 737; Padma Sundara
Rao v. State of Tamil Nadu [2002] 2 SCR 383 : (2002) 3 SCC
533; State of Punjab v. Salil Sabhlok [2013] 5 SCR 18 : (2013) 5
SCC 1; P. Ramachandra Rao v. State of Karnataka [2002] 3 SCR
60 : (2002) 4 SCC 578; Census Commissioner v. R Krishnamurthy
[2014] 11 SCR 463 : (2015) 2 SCC 796 - referred to.
Glor v. Switzerland 13444/04, para 53; Bacher v. Austria (026/2014),
views CRPD/C/19/D/26/2014, para 3.3 - referred to.
F.A. Picture International v. Central Board of Film Certification
(2004) SCC OnLine Bom 961 - referred to.
Books and Periodicals Cited
Madhavi Goradia Divan, Facets of Media Law, Second Edition pg
284-285; Madhavi Divan, 'Morality, Obscenity and Censorship',
Supreme Court Cases (Journal), Vol 1 (2003), 1- 16; Ronald
Dworkin, Foreword, in Hare and Weinstein, eds., Extreme Speech
and Democracy, v-ix.as cited in Jeremy Waldron, The Harm in
Hate Speech, Harvard University Press Cambridge, Massachusetts
London, England (2012), Pg 175; John Stuart Mill, On Liberty (Penguin
Books, 1982) [99, 106] as cited in Jeremy Waldron, The Harm in
Hate Speech, Pgs 194, 197; Colin Barnes, Disabling Imagery and the
Media, An Exploration of the Principles for Media Representation of
Disabled People, The British Council Of Organisations Of Disabled
People, Part Two :Commonly Recurring Media Stereotypes (1992);
Angharad E. Beckett, Citizenship and Vulnerability: Disability and
Issues of Social and Political Engagement, Palgrave Mamillan (2006);
Colin Barnes et al., Exploring Disability. A Sociological Introduction,
Cambridge, Polity Press, (1999) Pg 10; Allan Sutherland, Disabled
we Stand, London: Souvenir Press (1981); Teresa Milbrodt, Today I
Had an Eye Appointment, and I'm Still Blind": Crip Humor, Storytelling,
and Narrative Positioning of the Disabled Self, Disability Studies
Quarterly, University of Missouri, Columbia, Volume 38 (2018)
[11]; Tom Shakespeare, Joking a part, Body and Society, (1999)
Volume 5(4), 47-55 as cited in Kinda Abujbarah, Laughing Back:
A Phenomenological Study of Disability Humor Using Culturally
Responsive Methodologies (Doctoral Dissertation) (2019); The
Handbook for Parliamentarians on the Convention on the Rights of
[2024] 7 S.C.R.
253
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
Persons with Disabilities and its Optional Protocol, From Exclusion
to Equality: Realizing the rights of persons with disabilities (2007);
The UN General Assembly adopted the WPA, and declared at the
same time the United Nations Decade of Disabled Persons, 19831992. See also Paul Harpur, 'From Disability to ability: changing
the phrasing of the debate' (2012) 27 (3) Disability & Society 325,
327; United Nations, Improving Communications about People
with Disabilities (Recommendations of a United Nations Seminar,
8-10 June 1982, Vienna), p. 5; Allison Hobgood and David Wood,
Disability Humour and the Meanings of Impairment in Early Modern
England, Hobgood, Recovering Disability in Early Modern England.
The Ohio State University Press, 2013; Shawn Bingham and Sara
Green, Aesthetic as Analysis: Synthesizing theories of humor and
disability through stand-up comedy, Humanity & Society, Volume
40(3), 1, 6 (2016); 7 Mike Oliver, The social model of disability: Thirty
years on, Disability & Society, 28(7), 1024-1026; Teresa Milbrodt,
Today I Had an Eye Appointment, and I'm Still Blind": Crip Humor,
Storytelling, and Narrative Positioning of the Disabled Self, Disability
Studies Quarterly, University of Missouri - Columbia Vol. 38 No. 2
(2018); Robin Smith and Mara Shapon-Shevin, Disability Humor,
Insults, and Inclusive Practice Social Advocacy and Systems Change,
1(2), 2008-2009; "Nothing about Us, Without Us", International Day
of Disabled Persons: Themes and Observances of Previous Years,
United Nations (2004) - referred to.
Websites
https://disability-studies.leeds.ac.uk/wp-content/uploads/sites/40/
library/Barnes-disabling-imagery.pdf
https://disability-studies.leeds.ac.uk/wp-content/uploads/sites/40/
library/Sutherland-CHAPTER6.pdf
https://dsq-sds.org/index.php/dsq/article/view/6163/4902
https://web.archive.org/web/20200506223854id_/
https:/digitalcommons.chapman.edu/cgi/viewcontent.cgi?article=1
008&context=education_dissertations
https://www.un.org/disabilities/documents/toolaction/ipuhb.pdf
https://www.ohchr.org/en/documents/general-comments-andrecommendations/general-comment-no6-equality-and-nondiscrimination
254
[2024] 7 S.C.R.
Digital Supreme Court Reports
https://www.ohchr.org/sites/default/files/Documents/Publications/
Disabilities_training_17EN.pdf
https://muse.jhu.edu/pub/30/oa_monograph/chapter/897500
https://journals.sagepub.com/doi/10.1177/0160597615621594
https://sites.cortland.edu/sasc/wp-content/uploads/
sites/12/2012/12/Disability-Humor-Final.pdf
h t t p s : / / w w w. u n . o r g / e s a / s o c d e v / e n a b l e / i d d p 2 0 0 4 .
htm#:%7E:text=The%20motto%20%E2%80%9CNothing%20
About%20Us,and%20with%20persons%20with%20disabilities
List of Acts
Constitution of India; Cinematograph Act, 1952; Rights of Persons
with Disabilities Act 2016; Cinematograph (Certification) Rules
1983; Cinematograph (Certification) Rules, 2024.
List of Keywords
Article 19(1)(a) of Constitution of India; Article 19(2) of Constitution
of India; Section 7 (d) of the Rights of Persons with Disabilities
Act 2016; Persons with disabilities; Impact of the provisions of
Rights of Persons with Disabilities Act 2016 on the certification of
films;Principle of reasonable accommodation; Expert on disability;
Experts for the examination of the film; Complex balancing of
interests; Cripple and spastic; Societal perceptions about persons
with disabilities; Negative self-image and perpetuate discriminatory
attitudes; Language that individualises the impairment; Accurate
representation of a medical condition; Misleading portrayal of a
condition; Barriers persons with disabilities face; Visual media;
Showcasing diverse realities of persons with disabilities; Promotion
of inclusive understanding of disability; Promotion of participation
of persons with disabilities; Equalisation of opportunities; Expert
opinions for assessing the overall message of films; Involvement of
persons with disabilities in the implementation of measures; Training
and sensitization programs; Lived experiences of persons with
disabilities; Principles of the social model of disability; Importance
of respectful language; Accurate and empathetic representation of
persons with disabilities; Humour and disabilities; Disability humour;
Disabling humour;Cinematograph Act an instance of reasonable
restrictions under Article 19(2); Restraints on films; Principles of due
process, social interest; Equality of opportunity; Gender equality;
[2024] 7 S.C.R.
255
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
Recognition of the evolving capacities of children with disabilities,
ensuring their right to maintain their identities.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No.7230 of 2024
From the Judgment and Order dated 15.01.2024 of the High Court
of Delhi at New Delhi in WP(C) No.522 of 2024
Appearances for Parties
Jai Anant Dehadrai, Pulkit Agarwal, Sudhanshu Kaushesh, Siddharth
Sharma, Md Tasnimul Hassan, Martin George, Prashant Kumar, Md
Anas Chaudhary, Md Sharyab Ali, Zahid Ali, Vibhu Tandon, Avnish
Chaturvedi, Advs. for the Appellant.
Tushar Mehta, Solicitor General, Parag Tripathi, Sr. Adv., Ritin Rai,
Alipak Banerjee, Karishma Karthik, Salvador Santosh Rebello,
Raghav Sharma, Ms. Kritika Grover, Jaskirat Pal Singh, Prateek
Tanmay, Madhav Sinhal, Mrs. Sansriti Pathak, Mayank Pandey, Mrs.
Aarushi Singh, Amrish Kumar, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Dr Dhananjaya Y Chandrachud, CJI
Contents*
A. Factual Background ................................................................
3
B. The High Court ........................................................................ 6
C. Legislative Framework ............................................................
7

I. The 1991 guidelines .............................................................
10

II. Article 19(1)(a) and The Cinematograph Act ......................
11
D. The Context of speech ...........................................................
14
I. Disabling imagery: stereotypical portrayal of persons with
disabilities in the media. .......................................................
15

II. Stereotyping as an anti-thesis to dignity and
non-discrimination ...............................................................
17
* Ed. Note: Pagination as per the original Judgment.
256
[2024] 7 S.C.R.
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III. The Framework of the RPwD Act, 2016.............................
18

IV. International Jurisprudence ................................................
20
1. Equality and Non-Discrimination ...................................
22
2. Awareness-raising ..........................................................
24
V. Indian jurisprudence aligns with the human rights approach...
28
E. Speech must not prejudice the marginalised and
disenfranchise them further ....................................................
30
F. Caveat: Disability Humour v. Disabling Humour .....................
31
G. The Present Case ...................................................................
33
1.
Leave granted.
2.
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'.
3.
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.
A.
Factual Background
4.
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.
5.
The appellant claims that the film violates the constitutionally
protected rights of persons with disabilities; and the provisions
of the Cinematograph Act, 19521 and the Rights of Persons with
Disabilities Act 20162. The appellant claims that the Central Board
1
 "Cinematograph Act"
2
 "RPwD Act"
[2024] 7 S.C.R.
257
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
of Film Certification3 has violated its statutory duty to certify films in
accordance with the applicable guidelines.
6.
He therefore sought directions:
(i)
Mandating the inclusion of an expert on disability within the
Central Board of Film Certification and its advisory panel
constituted under Sections 3 and 5 of the Cinematograph Act;
(ii)
Mandating the inclusion of the expert under Section 3 of the
Cinematograph Act, 1952;
(iii) Seeking relief against the first respondent, including punitive
damages; and
(iv) A public apology from the first respondent.
7.
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.
8.
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
3
 "CBFC"/"The Board"
258
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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.
B.
The High Court
9.
The High Court of Delhi noted that the appellant had not disputed the
explanation offered by the first respondent that the overall message
of the film was around overcoming the disability and dwelt on the
strength of the characters suffering from disabilities. The Court noted
that the primary challenge that the film is offensive to the sensibilities
of persons with disabilities, is thus not established. Underlining that
the film was granted certification for unrestricted public exhibition by
CBFC, the High Court held that the reliefs sought by the appellant
were non-maintainable.
10. Summarised briefly, the High Court's findings are:
(i)
The first respondent's reply refutes the allegations made in the
notice. They contested any suggestion that the movie's intent
was to offend or humiliate differently-abled persons. Instead,
they elucidated the overarching message of the film as intended
by its creator;
(ii)
The appellant did not raise further grievances after receiving the
reply and until filing the petition, indicating a lack of challenge
to the film's alleged offensive nature;
(iii) There is a lack of legal justification for the reliefs sought; and
(iv) This dismissal is reinforced by the existence of guidelines
issued by the Central Government under Section 5B(2) of the
Act of 1952. These guidelines, including specific provisions for
persons with disabilities provided a comprehensive framework
for film certification.
[2024] 7 S.C.R.
259
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
C.
Legislative Framework
11. We have heard Mr Sanjoy Ghose, senior counsel and Mr Jai Anant
Dehadrai, counsel appearing on behalf of the appellant; Mr Parag
Tripathi, senior counsel appearing on behalf of Sony Pictures and Mr
Tushar Mehta, Solicitor General of India who has appeared to assist
the Court on its request. The issues that arise for our consideration
include the impact of the provisions of the RPwD Act 2016 on the
certification of films under the Cinematograph Act.
12. The appellant has alleged that the Board has violated its duties
under the statute for film certification in granting a certificate to the
film. The Cinematograph Act 1952, the Cinematograph (Certification)
Rules 19834 and the Guidelines for Certification of Films for Public
Exhibition 19915, constitute the framework for certification of films.
These provide for certification of films for exhibition and for regulation
of the exhibition of such films. Every film must obtain a prior certificate
for exhibition from the Board under Section 5A of the Act. The Board
is constituted under Section 3 by the Central Government and
consists of a chairperson and a minimum of twelve, and a maximum
of twenty-five members6. An application for the grant of a certificate
has to be in the format prescribed in the Rules7.
13. Once an application is made, it is assessed by an Examining
Committee, which makes recommendations to the relevant authority,
which could be the Chairperson of the Board or the Regional Officer
concerned. The authority, acting on the Board's behalf may act on the
recommendations or refer the application to the Revising Committee
which includes members of the Board or of advisory panels.8
14. Section 5 provides for Advisory Panels9 consisting of persons qualified
to judge the effect of the films on the public. The Advisory panels
are appointed to facilitate the efficient functioning of the Board. The
Board may consult the panel in respect of any application for the
4
"1983 Rules". The 1983 Rules have been superseded by the Cinematograph (Certification) Rules, 2024
("2024 Rules").
5
"Guidelines"
6
Cinematograph Act 1952, Section 3.
7
Cinematograph Act 1952, Section 4; Cinematograph (Certification) Rules 1983, Rule 21.
8
Cinematograph (Certification) Rules, 1983, Rule 24.
9
Cinematograph Act 1952, Section 5.
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[2024] 7 S.C.R.
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certification of a film. The panel has to examine the film and make
its recommendations to the Board in accordance with the applicable
rules.
15. Section 8 empowers the Central Government to make rules. The
1983 Certification Rules (and the 2024 Rules which superseded
them) were framed under the rule making power. Under the Rules,
the Regional Officer appoints an Examining Committee consisting of
members of the Advisory Panel (constituted under Section 5) and an
Examining Officer10. The Examining Officer submits recommendations
of the Examining Committee to the authority prescribed in the Rules,
based on the type and length of the content, and takes personal
responsibility for compliance with every guideline.11 The Chairperson
of the Board can require the Regional Officer to act on behalf of the
Board, in conformity with the recommendations of the Examining
Committee. The Chairperson may, in the alternative, on their own
motion or on a request by the applicant, refer the record to the Revising
Committee under Rule 24. The Revising Committee shall examine
the film and send the recommendations to the Chairperson of the
Board. If the Chairperson disagrees with the decision by majority of
the Revising Committee, the Board shall itself examine the film or
cause the film to be examined again by another Revising Committee
and the decision of the Board or a second Revising Committee, as
the case may be, shall be final.12 The certificate granted by the Board
is published in the Gazette is valid for 10 years.13
16. The Board may sanction the film for unrestricted public exhibition
('U' certificate); public exhibition restricted to adults ('A' certificate);
(U/A certificate); or public exhibition restricted to members of a
class, having regard to the nature, content and theme of the film
('S' certificate). The Board may certify the film as it is, or subject to
excisions or modifications or refuse to sanction the film for public
exhibition altogether.
17. Section 5B provides that a film shall not be certified if in the opinion of
the Board, it is against "the interests of the sovereignty and integrity
10
Cinematograph (Certification) Rules, 1983, Rule 22.
11
ibid, Rule 22 (13).
12
ibid, Rule 24.
13
ibid, Rule 29.
[2024] 7 S.C.R.
261
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
of India, the security of the State, friendly relations with foreign States,
public order, decency or morality, or involves defamation or contempt
of court or is likely to incite the commission of any offence." Section
5B(2) states that the Central Government may delineate principles
to guide the authority granting a certificate for public exhibition of
films. Accordingly, Guidelines have been framed in 1991.
I.
The 1991 Guidelines
18. The appellant states that the egregious portrayal of characters with
disabilities in the film necessitates judicially mandated checks and
the framing of guidelines for creators of content. The Guidelines,
framed under Section 5B of the Cinematograph Act, are interpreted
as broad standards and require (inter alia) that the Board must ensure
that scenes showing abuse of physically or mentally handicapped
persons are not presented needlessly.14 The guidelines prescribe
sensitive portrayal of women, children and persons with disabilities.15
The film must be examined as a whole and in line with contemporary
standards of the country and the people to whom it relates.
19. This Court has laid down tests to determine challenges to the portrayal
of persons, situations and characters in films. The aversion defence
states that the portrayal of a social evil meant to arouse revulsion,
such as scenes of sexual violence or communal tension, are meant
to draw attention to these evils rather than to glorify them. They
must not be barred for mere portrayal and due regard must be had
to the overall message of the film, rather than standalone scenes.16
Films must remain sensitive to standards of society and alive to
social changes.17 The Board is required to view the film as a whole
in applying the above metrics. The decision must not be based on
isolated bits and scenes in the film.18
20. Once certified, the film is presumed to have complied with the
applicable Rules and Guidelines, and its effect on the public
14
Guidelines For Certification of Films for Public Exhibition 1991, Clause 2 (iii) (b).
15
ibid, Clause 2 (iii) (a), (b).
16
Madhavi Goradia Divan, Facets of Media Law, Second Edition pg 284-285; Bobby Art International v. Om
Pal Singh Hoon, 1996 4 SCC 1 [27-28]
17
Guidelines (supra), Clauses 1 (a) and 3 (ii)
18
Director General,Directorate General of Doordarshan & Ors. (2006) 8 SCC 433 [20, 34]
(supra) [38]; S Rangarajan v P Jagjivan Ram and Ors. (1989) 2 SCC 574
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cannot ordinarily be re-assessed by the Court, having already been
considered by an expert body19.
21. The certification of the film in question is not in issue before us. In that
regard, as the High Court has noted, the appellant has not contested
Sony Pictures' reply to their legal notice. During the course of the
hearing it was stated across the Bar that since the film has been
released in the meantime, the certification itself is not seriously in
challenge. The appellant has sought the framing of guidelines and
inclusion of recommendations for creators to follow while dealing
with sensitive subjects such as the rights of persons with disabilities
in the visual media.
II.
Article 19(1)(a) and The Cinematograph Act
22. A filmmaker's right to exhibit films is a part of their fundamental
right to freedom of speech and expression under Article 19(1)(a),
which is subject to reasonable restrictions under Article 19(2)20. The
Cinematograph Act is an instance of reasonable restrictions on this
right under the 'decency and morality' rubric of Article 19(2).21 Prior
certification under the Act has been regarded as a valid restraint
on cinematic speech because of its 'instant appeal' and the ability
to stir emotions more deeply than other artistic media.22 Even so,
like restraints on cinematic speech have to be narrowly construed
because of their potential to imperil the significant value of free
speech which is a constitutionally protected value.
23. In KA Abbas v. Union of India 23, this Court underlined that restraints
on cinematic expression have to be extremely narrow.24 The Court
held that when determining the effect of a film, the Board must view it
from the vantage of an ordinary person of common sense rather than
19
Union of India v. KM Shankarappa (2001) 1 SCC 582; Prakash Jha v. Union of India (2011) 8 SCC 372
20
19.