Supreme Court of India
NIPUN MALHOTRAversusSONY PICTURES FILMS INDIA PRIVATE LIMITED & ORS.
- Citation
- 2024 INSC 465
- Decided
- 8 July 2024
- Disposal
- Disposed off
- Bench
- D Y CHANDRACHUD
Holding
The Supreme Court held that the Board’s certification of the film, based on existing guidelines, cannot be interfered with, and that Section 7(d) of the RPwD Act does not impose a compulsory‑speech obligation on private filmmakers.
Summary
The appellant, a person with arthrogryposis, challenged the portrayal of persons with disabilities in the film ‘Aankh Micholi’, alleging violations of the Rights of Persons with Disabilities Act, 2016 (RPwD Act) and the Cinematograph Act, 1952. He sought the inclusion of disability experts on the Central Board of Film Certification (CBFC), beeping of offensive scenes, and a directive for Sony Pictures to produce an awareness film under Section 7(d) of the RPwD Act. The Supreme Court examined whether the Board’s certification, which found the film’s overall message compliant with existing guidelines, could be interfered with, and whether the statutory framework already accommodates disability considerations. The Court held that the Board’s expert determination should not be disturbed, that Section 7(d) imposes obligations only on the government and cannot compel private filmmakers to produce awareness films, and that existing certification rules already provide for expert consultation. Consequently, the Court declined to issue the requested guidelines or remedial orders, emphasizing that the film’s freedom of expression is protected unless it directly infringes the rights of persons with disabilities. The appeal was disposed without any order as to costs.
Issues considered
- The impact of the RPwD Act, 2016 on film certification under the Cinematograph Act, 1952
- Whether the CBFC must include disability experts on its Board and advisory panels
- Whether the film should be partially censored (beeping) for derogatory content
- Whether Section 7(d) of the RPwD Act can compel a private filmmaker to produce an awareness film
- Whether the Supreme Court can prescribe new guidelines for portrayal of persons with disabilities in visual media
Legislation cited
- Cinematograph Act, 1952s. Section 3, s. Section 5, s. Section 5B(2)
- Cinematograph (Certification) Rules, 1983
- Cinematograph (Certification) Rules, 2024
- Constitution of Indias. Article 14, s. Article 15, s. Article 19(1)(a), s. Article 19(2), s. Article 21
- Rights of Persons with Disabilities Act, 2016s. Section 3, s. Section 7(d)
Subjects
Article 19(1)(a) of Constitution of IndiaArticle 19(2) of Constitution of IndiaSection 7(d) of the Rights of Persons with Disabilities Act 2016Persons with disabilitiesImpact of the provisions of Rights of Persons with Disabilities Act 2016 on the certification of filmsPrinciple of reasonable accommodationExpert on disabilityExperts for the examination of the filmComplex balancing of interestsCripple and spasticSocietal perceptions about persons with disabilitiesNegative self-image and perpetuate discriminatory attitudesLanguage that individualises the impairmentAccurate representation of a medical conditionMisleading portrayal of a conditionBarriers persons with disabilities faceVisual mediaShowcasing diverse realities of persons with disabilitiesPromotion of inclusive understanding of disabilityPromotion of participation of persons with disabilitiesEqualisation of opportunitiesExpert opinions for assessing the overall message of filmsInvolvement of persons with disabilities in the implementation of measuresTraining and sensitization programsLived experiences of persons with disabilitiesPrinciples of the social model of disabilityImportance of respectful languageAccurate and empathetic representation of persons with disabilitiesHumour and disabilitiesDisability humourDisabling humourCinematograph Act an instance of reasonable restrictions under Article 19(2)Restraints on filmsPrinciples of due process, social interestEquality of opportunityGender equalityRecognition of the evolving capacities of children with disabilities
Judgment
[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 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; (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, 1983-
1992. 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-and-
recommendations/general-comment-no6-equality-and-non-
discrimination
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.
Digital Supreme Court Reports
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 [2024] 7 S.C.R.
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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.
260 [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
262 [2024] 7 S.C.R.
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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. Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right-(a)to freedom of speech and expression;
(2)Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the
State from making any law, in so far as such law imposes reasonable restrictions on the exercise of
the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with Foreign States, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an offence.
21 Madhavi Divan, ‘Morality, Obscenity and Censorship’, Supreme Court Cases (Journal), Vol 1 (2003),
1–16; KA Abbas v. Union of India, (1970) 2 SCC 780 [40].
22 KA Abbas (supra) [20,34]
23 [1971] 2 SCR 446 : (1970) 2 SCC 780
24 KA Abbas (supra) [34]
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Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
a hypersensitive person. Moreover, the Board must be alive to social
change and must not adopt a conservative or orthodox approach.
The limits on expression must be ‘necessary’, rather than merely
expedient or convenient, which are relatively lower thresholds.25 The
Board must make a “substantial allowance” in favour of freedom
and allow creative works to interpret both the foibles as well as the
good in the society.26
24. Since the Cinematograph Act provides for an elaborate procedure for
certification of films by expert bodies, the approval of the statutory
committees such as the Examination Committee must be given due
weight. The Board has the benefit of hearing the perspective of the
filmmakers, who make relevant representations before the Board.
Courts are slow to interfere with the conclusions of specialised bodies,
constituted under the Act.27 In this narrow scope of intervention,
the Court may not act like a film critic and must observe certain
grounding principles. For instance, the mere mention of a subject in
the film is not problematic in itself and a deeper examination of the
manner in which the theme has been handled is required.28 In Bobby
Art International v. Om Pal Singh Hoon29, this Court held that as
long as the overall message of the film is not to extol a social evil,
its mere depiction of a social evil is not impermissible. It was held
there that the portrayal of sexual violence could not be construed as
a promotion of such violence.30 In Nachiketa Walhekar v. Central
Board of Film Certification31, a three-judge bench speaking through
one of us (Dr DY Chandrachud J) refused to stay the release of a
film on the ground of its apprehended use as evidence in a pending
trial. It was held that the Court will be extremely slow to restrain
creative works, once the Board had approved exhibition.32
25. Restraints on films are founded on principles of due process, social
interest, limited application in cases of absolute necessity and clear
25 S Rangarajan (supra) [21,53]
26 Ramesh v. Union of India, (1988) 1 SCC 668 [15]
27 Ramesh (Supra) [19]
28 KA Abbas (supra) [50]; See also Ramesh (supra) [17]
29 [1996] Supp. 2 SCR 136 : 1996 4 SCC 1
30 Bobby Art International (supra) [29-33]
31 (2018) 1 SCC 778
32 Nachiketa Walhekar (supra) [2,4]; See also, Viacom 18 vs Union of India 2018 1 SCC 761 [16]
264 [2024] 7 S.C.R.
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purpose of the restraint.33 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.
D. The Context of speech
26. We are dealing with cinematic speech. In a slightly different context
of anti-hate speech and group-defamation laws, Professor Ronald
Dworkin argued that freedom of speech and expression extended
even to hate speech. While he conceded the need to protect certain
groups from violence and discrimination, he believed society could
adopt laws to offer such protection. He regarded hate speech
as protected speech and necessary, so that anti-discrimination
laws could gain political legitimacy and enforceability among their
opponents. His argument was that “if we want legitimate laws against
violence or discrimination, we must let their opponents speak”.34
John Stuart Mill on the other hand, argued that such speech
served a public-education function by promoting public debate,
and to sustain constant questioning of the truth35. Disagreeing
with Dworkin’s legitimacy argument as well as Mill’s public debate
argument, Jeremy Waldron argued in The Harm in Hate Speech that
on certain issues, society is past the point where it needs to debate
fundamental aspects of issues such as race. Waldron argued that
if hate speech were to be allowed because of its ability to sustain
a public debate, such debate would come at the cost of the dignity
of racial minorities, who have had to bear humiliating attacks on
their objective social standing due to such speech.36 This affront
to one’s dignity and objective treatment by society, rather than the
33 KA Abbas (supra) [40]
34 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.
35 John Stuart Mill, On Liberty (Penguin Books, 1982) [99, 106] as cited in Jeremy Waldron, The Harm in
Hate Speech, Pgs 194, 197.
36 Jeremy Waldron (supra), Pg 195.
[2024] 7 S.C.R. 265
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
more subjective notion of the ‘effect on one’s feelings’ by way of
such speech must be curbed.37
27. Even though Waldron was writing in a different context, he highlights
the importance of the ‘context’ of speech as paramount in deciding
the validity of restraints on it. Derogatory speech and stereotypes
usually target the marginalised. The impact of the speech on human
dignity; the identity of the speaker and the target; and the linguistic
connotations of the speech may be considered in deciding issues
around stereotypical speech. The standard of the ‘overall message’
of a film, in some ways, furthers this emphasis on the importance
of context and manner of portrayal in visual media.38
I. Disabling imagery: stereotypical portrayal of persons with
disabilities in the media.
28. Media portrayals of persons with disabilities have been historically
oppressive. Consistent with the understanding that disability was
‘anomalous’ in a normative framework of ability, persons with
disabilities were represented in disparaging ways. They were
portrayed as evil, as objects of pity, violence, curiosity and ridicule,
as burdens on society, sexually abnormal, and overall, as people
incapable of community participation39. Such disabling imagery
formed “the bedrock on which the attitudes towards, assumptions
about and expectations of disabled persons are based”40. Such
portrayal perpetuated stigmatising views about disability as a
vulnerability or a ‘suffering’.41 Recurrent negative portrayals as
illustrated above and frequent use of patronising and offensive
language such as “victim”, “differently abled”, or “unfortunate”
37 Jeremy Waldron (supra), Pgs 107,197 “I think we do need to ask whether we are past the stage where
society is in such need of a robust debate about fundamental matters of race that we ought to bear the
costs of what amount to attacks on the dignity of minority groups. Think of what those costs may involve.
Are we re ally in need of such robust debate on racial ontology that we have no choice but to require
individuals and families within minority groups to bear the costs of such humiliating attacks on their social
standing?”
38 Bobby Art International (supra).
39 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) Pg 7 <https://disability-studies.leeds.ac.uk/wp-content/uploads/
sites/40/library/Barnes-disabling-imagery.pdf>; Angharad E. Beckett, Citizenship and Vulnerability:
Disability and Issues of Social and Political Engagement, Palgrave Mamillan (2006) Pg.
40 ibid.
41 Beckett (ibid) at Pg 109.
266 [2024] 7 S.C.R.
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to describe individuals continue to perpetuate negative attitudes
towards persons with disabilities.
29. The problem with such portrayal is that it channels attention on the
medical aspects of impairment rather than the social aspects that
actually disable a person. This impacts persons with disabilities as
individuals as well, subjecting them to stigma and social exclusion.42
30. As Allan Sutherland wrote, “stereotyped views frequently act as self-
fulfilling prophecies, forcing the person with a disability into a role
that can then be used to justify the original treatment.”43 They shape
and strengthen the already existing negative assumptions about their
abilities44. This resultantly exacerbates systemic inequalities, and
inhibits their dignified participation in the public sphere for education
or employment.45
31. Humour is a powerful medium of speech that can reinforce attitudes
and influence behaviour towards groups. Pejorative jokes may
reinforce stereotypical assumptions about disabilities, validating
abusive attitudes and practices towards persons with disabilities.46
Humour, however, also has a complex dual role for persons with
disabilities. It could be “both liberating and stigmatising” depending
on the context of the joke and who is telling it.47 We shall advert to
this dual role later.
II. Stereotyping as an anti-thesis to dignity and non-discrimination.
32. This Court is cognisant of the impact of stereotypes on discrimination
and the enjoyment of fundamental rights. We have traced safeguards
42 Colin Barnes et al., Exploring Disability. A Sociological Introduction, Cambridge, Polity Press, (1999) Pg
10.
43 Allan Sutherland, Disabled we Stand, London: Souvenir Press (1981) < https://disability-studies.leeds.
ac.uk/wp-content/uploads/sites/40/library/Sutherland-CHAPTER6.pdf>
44 Beckett (supra) Pg 3.
45 ibid Pg 109.
46 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] < https://dsq-sds.org/index.php/dsq/article/view/6163/4902 >
47 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) < https://web.archive.org/web/20200506223854id_/https:/
digitalcommons.chapman.edu/cgi/viewcontent.cgi?article=1008&context=education_dissertations >
[39-40]; See Union of India v. National Federation of the Blind, (2013) 10 SCC 772 [Justice P Sathasivam,
50].
[2024] 7 S.C.R. 267
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
against stereotyping to the anti-discrimination code under Article 15,
the right to dignity and to equality.
33. For instance, in Anuj Garg v. Hotel Association of India,48 this Court
struck down a law that barred women’s employment in premises
where liquor was consumed. Such an indirectly discriminatory law
was held to be inflicted by “incurable fixations of stereotype morality
and conceptions of sexual role”.49 In Navtej Singh Johar v. Union
of India,50 this Court found that Section 377 of the Indian Penal
Code was discriminatory and premised on stereotypes about binary
genders and the role of sex. It singled out a class of people on a basis
proscribed under Article 15(1)51. A provision that was based on and
perpetuated stereotypes deprived certain individuals of their right to
equal participation as citizens and equal enjoyment of life.52 In Indian
Young Lawyers Association v. State of Kerala53, a Constitution
Bench of which one of us was a part (Dr DY Chandrachud), found
that stereotypes about sex undercut dignity. The paternalistic notion
that women were a weaker sex was found to be contrary to the dignity
of women (inter alia) and as such, impermissible.54 The Constitution
envisions dignity, liberty and equality as imperatives for a dignified
society. The “dehumanising effect of stereotypes” has been recognised
by this Court in upholding the rights of those at the receiving end of
these prejudicial notions and biases.55
III. The Framework of the RPwD Act, 2016
34. The Rights of Persons with Disabilities Act, 2016, inspired by the
Social Model of Disability, marks a significant legislative step forward.
This model, which gained prominence after the American Civil Rights
Movement, uses the term “person with disability” instead of “disabled
person,” emphasizing the individuality of people rather than their
disabilities. According to the Social model, disability arises not from
48 [2007] 12 SCR 991 : (2008) 3 SCC 1
49 Anuj Garg (supra).[46]
50 [2018] 7 SCR 379 : (2018) 10 SCC 1
51 Navtej Singh Johar v. Union of India (2018) 10 SCC 1 [Justice Chandrachud, 460]
52 ibid [608]
53 [2018] 9 SCR 561: (2019) 11 SCC 1
54 ibid, [Justice Chandrachud, 297]
55 Indian Young Lawyers Association (supra) [300]
268 [2024] 7 S.C.R.
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a person’s impairments but from the artificial barriers imposed by
society and the environment.
35. The RPwD Act defines a person with a disability as someone with
a long-term physical, mental, intellectual, or sensory impairment
that, in interaction with societal barriers, hinders their full and
effective participation in society on an equal basis with others56.
36. For the first time, the 2001 Census counted people with disabilities.
This inclusion marked a step towards recognizing persons with
disabilities as a distinct group deserving of rights tailored to their
needs. Earlier efforts, such as the Mental Health Act of 1987 and
the establishment of the Rehabilitation Council of India in 1986, laid
the groundwork for these advancements. The 1995 Persons with
Disabilities Act further propelled the Disability Rights Movement
by addressing early detection, education, employment, affirmative
action, non-discrimination, and barrier-free access.57
37. Years of advocacy culminated in the enactment of the RPwD Act
2016, aligning Indian law with the UN Convention on the Rights of
Persons with Disabilities58. The Act embodies principles of dignity,
individual autonomy (freedom to make personal choices), non-
discrimination, and effective participation. The CRPD asserts that
disability arises from the interaction between impairments and social
attitudes, creating barriers to full and equal participation in society.
38. The RPwD Act represents a fundamental shift from viewing
disability through a charity lens to a human rights perspective.
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
56 The Rights of Persons with Disabilities Act, 2016, s. 2(S).
(s) “person with disability” means a person with long term physical, mental, intellectual or sensory
impairment which, in interaction with barriers, hinders his full and effective participation in society equally
with others;
57 The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
58 “CRPD”
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Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
capacities of children with disabilities, ensuring their right to
maintain their identities.
39. Section 3(1) of the RPwD Act mandates that the appropriate
government ensure persons with disabilities enjoy the right to equality,
life with dignity, and respect for their integrity on par with others.59
The Act comprehensively prohibits discrimination against persons
with disabilities in various spheres, including employment, education,
access to public places, and provision of goods and services. It
asserts that no person with a disability shall be deprived of any right
or benefit available to others. This legislative framework reinforces
the commitment of the Act to fostering a society that respects and
upholds the rights of all individuals, regardless of disability status,
thereby promoting inclusivity and societal harmony.
IV. International Jurisprudence
40. The human rights approach to disability has evolved over the latter
half of the 20th century, incorporating disability into a broader
paradigm of rights that began with the United Nations’ Universal
Declaration of Human Rights of 1948. This declaration acknowledged
that all individuals have civil, political, economic, social, cultural, and
development rights, despite their differences.60 From this viewpoint,
disability is seen as a variation in human characteristics, enriching
the diversity of societal contributions and requiring mechanisms to
ensure individuals can realize their potential.61
41. This rights-based perspective views people with disabilities as
subjects rather than objects, shifting from seeing them as problems
to recognizing them as rights holders. Since the mid-1970s, this
59 Section 3. Equality and non-discrimination.—
(1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality,
life with dignity and respect for his or her integrity equally with others.
(2) The appropriate Government shall take steps to utilise the capacity of persons with disabilities by
providing appropriate environment.
(3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the
impugned act or omission is a proportionate means of achieving a legitimate aim.
(4) No person shall be deprived of his or her personal liberty only on the ground of disability. 8 (5) The
appropriate Government shall take necessary steps to ensure reasonable accommodation for persons
with disabilities.
60 The Universal Declaration of Human Rights of 1948.
61 See The Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities
and its Optional Protocol, From Exclusion to Equality: Realizing the rights of persons with disabilities
(2007). https://www.un.org/disabilities/documents/toolaction/ipuhb.pdf
270 [2024] 7 S.C.R.
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perspective has manifested in four ways at the UN level: through
non-binding declarations and resolutions, in the interpretation of
general human rights treaties, in the drafting of thematic human
rights treaties, and in the ongoing work of specialized agencies.
The CRPD aims to promote, protect, and ensure the full and equal
enjoyment of all human rights and fundamental freedoms by persons
with disabilities, emphasizing respect for their inherent dignity. The
Convention does not create new rights but expresses existing rights
in a way that addresses the needs of PWDs.
42. A Committee monitors the implementation of the Convention.
Countries that ratify it, including India (in 2007), must report regularly
on their progress. The 2030 Agenda for Sustainable Development
also pledges to “leave no one behind,” asserting that persons with
disabilities must be both beneficiaries and agents of change.
1. Equality and Non-Discrimination
43. Equality and non-discrimination are fundamental to all human rights
treaties. The International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural
Rights prohibit discrimination on various grounds, forming the basis
for Article 5 of the CRPD.62 Thematic UN human rights conventions
aim to establish equality and eliminate discrimination, with provisions
specifically addressing these principles. The CRPD builds on the
experiences of other conventions, evolving the UN’s approach to
equality and non-discrimination.
44. The CRPD Committee routinely observes several forms of
discrimination against persons with disabilities, including violations
in accessing the built environment, transportation, information, and
communications; negative portrayals and harmful stereotypes in the
media; deprivation of the right to legal capacity; barriers to accessing
justice, education, and employment; and restrictions on participating
62 Article 5 - Equality And Non-Discrimination
1. States Parties recognize that all persons are equal before and under the law and are entitled without
any discrimination to the equal protection and equal benefit of the law.
2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with
disabilities equal and effective legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate
steps to ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with
disabilities shall not be considered discrimination under the terms of the present Convention.
[2024] 7 S.C.R. 271
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
in cultural life, recreation, leisure, and sports.63 Despite the adoption
and ratification of the CRPD by many countries, disability-based
discrimination persists due to continued reliance on charity and
medical paradigms. In light of the foregoing considerations, it is
evident that there exist outdated approaches to addressing disability,
which fail to acknowledge individuals with disabilities as full rights
holders.64 These approaches, characterized by a desire to “care for
and protect” persons with disabilities or to “fix” or “cure” them, are
fundamentally incompatible with the principles of equality and non-
discrimination enshrined in the CRPD.
45. The General Comment on Article 5 of the CRPD states that state
parties should take proactive measures to address discriminatory
portrayals of persons with disabilities in the media. 65 Such portrayals,
rooted in charity, welfare, and medical paradigms, perpetuate harmful
stereotypes and undermine the dignity and autonomy of individuals
with disabilities. States must therefore implement measures to
encourage the media to portray persons with disabilities in a manner
consistent with the CRPD, thereby combating negative views that
depict them as dependent or lacking autonomy.
46. The human rights approach to disability has been highlighted in many
international cases. In Glor v. Switzerland66, the European Court
of Human Rights declared a European and worldwide consensus on
protecting persons with disabilities against discrimination, referencing
the CRPD. In this case, the applicant, deemed unfit for military service
due to diabetes, was still taxed for not performing military service.67
The court held that Switzerland had unlawfully discriminated against
him. In Bacher v. Austria68, the applicant, with autism and Down
Syndrome, faced accessibility issues when a wooden roof crucial
for accessing his home was destroyed. The CRPD Committee noted
that states must ensure equal access for Persons with Disabilities
63 OHCHR, General Comment 6 on Article 5: Equality and Non Discrimination, (CRPD/C/GC/6, 26 April
2018), Para 2. See https://www.ohchr.org/en/documents/general-comments-and-recommendations/
general-comment-no6-equality-and-non-discrimination
64 Ibid. Para 3.
65 Ibid, Para 44.
66 Glor v Switzerland, 13444/04, para 53.
67 Ibid.
68 Bacher v Austria (026/2014), Views CRPD/C/19/D/26/2014, para 3.3.
272 [2024] 7 S.C.R.
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to public goods, products, and services in a manner that respects
dignity. 69
47. The human rights approach to disability, reflected in the CRPD,
represents a significant evolution in international human rights law.
It emphasizes the need to treat persons with disabilities as rights
holders, ensuring their full participation and inclusion in society.
2. Awareness-raising
48. Article 8 of the CRPD mandates measures for raising awareness
about disability rights,70 including:
i. Raising awareness at all levels of society, starting from families,
to instill respect for disability rights and dignity;
ii. Fighting stereotypes and prejudices against persons with
disabilities in various life domains, regardless of sex or age; and
iii. Promoting recognition of the abilities and valuable contributions
of persons with disabilities.
49. Awareness-raising campaigns targeting both the public and private
sectors are essential for combating stereotypes, prejudices, and harmful
practices relating to persons with disabilities.71 These campaigns
should address misconceptions that individuals with disabilities, such
69 Ibid. Para 9.9.
70 Article 8 – Awareness-raising
1. States Parties undertake to adopt immediate, effective and appropriate measures:
a) To raise awareness throughout society, including at the family level, regarding persons with disabilities,
and to foster respect for the rights and dignity of persons with disabilities;
b) To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including
those based on sex and age, in all areas of life;
c) To promote awareness of the capabilities and contributions of persons with disabilities.
2. Measures to this end include:
a) Initiating and maintaining effective public awareness campaigns designed:
i. To nurture receptiveness to the rights of persons with disabilities;
ii. To promote positive perceptions and greater social awareness towards persons with disabilities;
iii. To promote recognition of the skills, merits and abilities of persons with disabilities, and of their
contributions to the workplace and the labour market;
b) Fostering at all levels of the education system, including in all children from an early age, an attitude
of respect for the rights of persons with disabilities;
c) Encouraging all organs of the media to portray persons with disabilities in a manner consistent with
the purpose of the present Convention;
d) Promoting awareness-training programmes regarding persons with disabilities and the rights of
persons with disabilities.
71 OHCHR, Monitoring the Convention on the Rights of Person with Disabilities: Guidance for Human
Rights Monitors Professional Training Series No. 17 ( 2010). https://www.ohchr.org/sites/default/files/
Documents/Publications/Disabilities_training_17EN.pdf
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as autistic persons, deaf persons, blind persons, and persons with
psychosocial disabilities, are less likely to interact with colleagues or
be more productive due to fewer distractions. It is crucial to identify
and eliminate value systems like ableism that underpin legislation,
policies, and practices leading to inequality and discrimination.
50. Article 4.3 is significant for raising awareness.72 The CRPD Committee
recommends that States parties implement systematic awareness-
raising programs with the participation of Disabled Persons’
Organizations73 and Organizations of Persons with Disabilities.74 This
is articulated in the General Comment 7 on Articles 4.3 and 33.3
which talk about the participation of persons with disabilities in the
implementation and monitoring of the Convention75. The Comment
states that these programs should include media campaigns that
portray positive images of persons with disabilities, especially those
with albinism, psychosocial and/or intellectual disabilities, and deaf-
blind persons, as human rights holders. 76
51. 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.
52. The CRPD requires member states to “closely consult with” and
“actively involve” persons with disabilities through their organizations
72 Art 4 (2) CRPD states that: “With regard to economic, social and cultural rights, each State Party
undertakes to take measures to the maximum of its available resources and, where needed, within the
framework of international cooperation, with a view to achieving progressively the full realization of these
rights, without prejudice to those obligations contained in the present convention that are immediately
applicable according to international law.”
73 “DPO”
74 “OPDs”
75 See OHCHR, General Comment 7 on Article 4.3 and Article 33.3- the participation of persons with
disabilities in the implementation and monitoring of the Convention, (CRPD/C/GC/7, 09 November
2018).
76 Ibid.
274 [2024] 7 S.C.R.
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in the development and implementation of awareness-raising
campaigns.77 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.
53. The CRPD emphasizes respect for difference and acceptance of
persons with disabilities as part of human diversity. It aims to prevent
discrimination rather than disability, shifting the focus from a medical
approach to a rights-based approach. This perspective should also
guide public service campaigns related to public safety and health,
ensuring they respect diversity and combat discrimination.
54. The World Programme of Action Concerning Disabled Persons78 ,
adopted in 1982, promotes disability from a human rights perspective
and provides recommendations for national, regional, and international
action.79 It encourages developing media guidelines in consultation
with disability organizations, training in self-advocacy for persons
with disabilities, and informed education and training within the
media sector to improve disability portrayal.80 The guidelines should
promote sensitive and accurate portrayals of persons with disabilities
across various media forms, not just news media.
55. In line with the WPA, the United Nations developed guidelines for the
inclusion and portrayal of disabled people in the media, culminating
in the booklet titled “Improving Communications about People with
Disabilities.” 81 These guidelines, designed to be adaptable across
different media and countries, aim to improve public perception of
persons with disabilities. They cover topics such as inclusion in
77 Ibid.
78 “WPA”
79 The UN General Assembly adopted the WPA, and declared at the same time the United Nations Decade
of Disabled Persons, 1983-1992. See also Paul Harpur, ‘From Disability to ability: changing the phrasing
of the debate’ (2012) 27 (3) Disability & Society 325, 327.
80 Ibid.
81 United Nations, Improving Communications about People with Disabilities (Recommendations of a
United Nations Seminar, 8-10 June 1982, Vienna), p. 5.
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Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
mainstream programming, portrayal and depiction issues, the use
of language, and participation of persons with disabilities in media
production.82
56. While the guidelines from the WPA provide effective measures for
improving media portrayal, they are outdated in some respects,
particularly their medical-based understanding of disability. For instance,
they include recommendations on preventing and treating impairments,
which may contradict the CRPD’s principle of respecting disability as
part of human diversity. However, the guidelines’ promotion, availability,
and monitoring mechanisms remain valuable for encouraging accurate
and positive media representations of persons with disabilities.
V. Indian jurisprudence aligns with the human rights approach.
57. The foundation of laws for persons with disabilities has been traced
to the guarantee of dignity as a core human right, recognised by
the Constitution under Article 2183. The Scheme of the 2016 Act,
as opposed to the preceding 1995 Act, is not constrained by the
availability of resources, but recognises positive obligations of the
State to materialise these rights housed in its various provisions.84
58. This Court has held in Vikash Kumar v. Union Public Service
Commission85 that while not specifically mentioned in the Constitution,
persons with disabilities are equally entitled to the rights enumerated
therein. We recognised that the RPwD Act provisions create a
protective ambit which encompasses equality, non-discrimination
and dignity. Section 3 of the Act casts an affirmative obligation on
the government to enable the exercise of rights including the right
to equality and dignity, which vest in persons with disabilities with
equal rigour as others.86 This Court underlined the positive obligation
of both State and private parties to provide support to persons with
disabilities to facilitate their full and effective participation in society.
The RPwD Act, we noted, was more than an anti-discrimination
legislation. It emphasized creation of an environment conducive to the
above-mentioned rights including substantive equality and opportunity
82 Ibid.
83 Jeeja Ghosh v. Union of India (2016) 7 SCC 761 [37, 38]
84 Rajive Raturi v. Union of India, (2018) 2 SCC 413
85 [2021] 12 SCR 311 : 2021 5 SCC 370.
86 Vikash Kumar (supra) [41-44]
276 [2024] 7 S.C.R.
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to participate in society.87 This ruling reinforced the obligation of the
State and of private entities to support full participation in society,
aligning with the CRPD’s human rights model of disability.
59. This approach was further demonstrated in Ravindra Kumar
Dhariwal v. Union of India88, where this Court addressed the
discrimination faced by a Central Reserve Police Force Assistant
Commandant who developed a mental disability during service.
The Court emphasized ‘dignity’ and ‘equality’ under Section 3 of the
RPWD Act, highlighting the State’s positive duty to protect the rights
of persons with disabilities.
60. Recent rulings reflect the judiciary’s evolving role in not only
safeguarding individual rights but also in addressing the complex
intersections of disability, gender and mental health, enriching the
discourse on equality. This perspective rejects a one-size-fits-all
approach, acknowledging that disability is a nuanced, individualized
concept shaped by factors such as mental impairment and personal
circumstances. The legal framework stresses the need to prevent
stigmatization and discrimination against individuals with disabilities,
recognizing the profound impact on their sense of identity and dignity.
61. The 2016 Act came much after the 1991 Guidelines. The Guidelines
include the Board’s duty to protect against ‘needlessly’ abusive and
ridiculing scenes about persons with disabilities. In view of the instant
appeal of visual media, this guideline furthers the goal of creating an
environment conducive to inclusive and substantive equality in the
context of their historically oppressive social treatment. The certificate
entails a presumption that the film complies with the Guidelines. In
this instance, the film was granted a ‘U’ – certificate and it implies
that it does not needlessly portray persons with disabilities in a
manner contrary to the guidelines and statutes governing the field.
E. Speech must not prejudice the marginalised and
disenfranchise them further.
62. Article 19(1)(a) has been termed as “perhaps the most precious
of all the freedoms guaranteed by our Constitution”.89 Speech and
87 Vikash Kumar (supra) [52, 53, 60]
88 [2021] 13 SCR 823 : (2016) 7 SCC 761
89 Sakal Papers (P) Ltd v. Union of India [1962] 3 SCR 842 [Justice Mudholkar, 41]
[2024] 7 S.C.R. 277
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
expression form a crucial part of the democratic give and take90
and serve as a corrective check on public policy.91 Overall, they
promote the discursive health of democracy92. Social debate must
be enriched by diverse voices and wide participation from across the
social spectrum.93 Unfortunately, normative stereotypes about gender,
identity, sexual orientation and disability have hitherto deprived certain
groups of such participation. In Indibly Creative (supra), we held
that while satirical speech effectively exposed social absurdities,
hypocrisies and contradictions, even such expression was subject
to Article 19(2). This Court had remarked that if such expression,
which is otherwise acceptable because it promotes discourse, targets
the society’s marginalised, it may “confirm and strengthen people’s
prejudices against the group in question, which only marginalises
and disenfranchises them more”.94 Such expression, it was held,
may not enjoy the complete protection of Article 19(1)(a).
F. Caveat: Disability Humour v. Disabling Humour.
63. In the context of historically oppressive representation of persons
with disabilities, speech that entrenches stereotypes is opposed to
the dignity of such individuals. However, not all speech that uses
stereotypes commonly employed against persons with disabilities is
abhorrent by reason of such use alone. As stated in the preceding
sections, the context, intention and the overall message must be
considered before such use may be termed as prejudicial, and the
protection of free speech lifted.
64. 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.95 Also, the medical model treats disability as a
personal ‘tragedy’ which is by definition, incompatible with humour.96
90 S Rangrajan (supra) [36, 40-43]
91 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 [Bhagwati J, 29]
92 Prakash Jha v. Union of India (2011) 8 SCC 372 [8, 22-27]
93 Maneka Gandhi (supra), Indibly Creative (supra) [22, 28]
94 Indibly Creative Private Limited v. Government of West Bengal 2020 12 SCC 436. [23]
95 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 [58] <https://muse.jhu.edu/pub/30/oa_monograph/chapter/897500>
96 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) < https://journals.sagepub.
278 [2024] 7 S.C.R.
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This understanding is now obsolete under the social model which
views disability as a function of social barriers that disable such
individuals.97 The social model says that stereotypes stem from a
lack of familiarity with disability. This lack arises due to inadequate
representation and participation of persons with disabilities in
dominant discourse.98
65. Despite the history and the obsolescence of the medical model,
humour is not universally denounced in the context of disability. It
is now being increasingly used as a sophisticated literary medium
for engagement with the society by persons with disabilities. It
familiarises the society with the lived experiences of persons with
disability, thereby dispelling prejudicial myths, and sensitising
people.99 Challenging notions of ‘otherness’ or ‘inferiority’ associated
with persons with disability, humour creates an equal space.100
Comics with disabilities use self-deprecating humour to critique
the social order and counter stereotypical images101. They bring
stereotypes to the fore and rely on them in order to dispel them.102
Humour is a reclamation of the public discourse by persons with
disabilities who are pushing back against the dominant, ableist
narratives around disability.103
66. We must therefore, 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.104 The two cannot be equated in their impact
on dignity and on stereotypes about persons with disabilities105.
com/doi/10.1177/0160597615621594 >
97 Mike Oliver, The social model of disability: Thirty years on, Disability & Society, 28(7), 1024-1026,
<https://www.tandfonline.com/doi/full/10.1080/09687599.2013.818773 >
98 Kinda Abujbarah (supra) [29]
99 ibid.
100 Bingham and Green (supra) [31]
101 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) < https://dsq-sds.org/index.php/dsq/article/view/6163/4902 >
102 Kinda Abujbarah (supra) [43]
103 Bingham and Green (supra) [3]
104 Bingham and Green (supra) for differences between theories of humour based on how they treat
disability- the
105 See Robin Smith and Mara Shapon-Shevin, Disability Humor, Insults, and Inclusive Practice Social
[2024] 7 S.C.R. 279
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
G. The Present Case
67. The appellant had invoked the writ jurisdiction of the High Court on the
ground that the exercise of the second respondent’s fundamental right
to freedom of speech and expression, contravened the appellant’s
rights under Articles 14, 15 and 21 by reinforcement of stereotypes
by the film.
68. Both these rights are fundamental rights under Article 19(1)(a)
and Article 21 respectively. The High Court noted at paragraph
8 of the judgment that since the appellant had not contested the
second respondent’s claim that the overall message of the film was
about resilience of persons with disability, the primary challenge
that the film offended the sensibilities was not established. The
countervailing right of freedom of speech and expression of the
filmmaker as stated in the previous sections was not weighed against
the rights claimed by the appellant. The High Court could have
found that the two rights – the freedom of speech and expression
of the filmmaker on the one hand and the rights of persons with
disabilities need not be balanced because the rights in question
(dignity, non-discrimination and equality) do not include the right
to curb the filmmakers’ rights to exhibit a film duly certified for
such exhibition106. In the alternative, the High Court could have
undertaken a balancing of the two rights according to the single
or the double proportionality test- depending on whether it felt one
of the rights took precedence over the other.107
69. The High Court rightly does not engage in this discussion perhaps
because the appellant expressed satisfaction with a direction for
inclusion of expert members to the Board and the Advisory Panel
and because the certification of the film was not in issue. Therefore,
Advocacy and Systems Change, 1(2), 2008-2009 <https://sites.cortland.edu/sasc/wp-content/uploads/
sites/12/2012/12/Disability-Humor-Final.pdf > Smith et all provide a set of questions one must ask when
evaluating humour vis-à-vis disability:
• In the presence of a person with this disability, would you be comfortable sharing this joke? Hearing this
joke? • Does this joke laugh AT or WITH? • Is there a cost? Is it exploitive? Who benefits? • Does this
joke make you feel empathy, closeness, understanding. • Does it tell you “they” are irrevocably different,
make you feel more distant from “them”, give the impression they are somehow less than human,
provide/reinforce incorrect information about the disability, make you likely to be tense or awkward in the
presence of a person with this disability?
106 In Re Noise Pollution, (2005) 5 SCC 733
107 Central Public Information Officer, Supreme Court of India v. Subash Chandra Agarwal, Civil Appeal No.
10044 of 2010.
280 [2024] 7 S.C.R.
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limiting its inquiry to whether such relief could be granted, the High
Court decided against the appellant.
70. 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.108 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.
71. The appellant seeks guidelines against filmmakers, regarding the
provisions of the RPwD Act 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.
72. Regarding specific recommendations, our views are summarised
as follows:
72.1. We endorse 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.109 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.110 We are 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.
108 F.A. Picture International v. Central Board of Film Certification, 2004 SCC OnLine Bom 961 [12] as cited
in Indibly (supra) [35].
109 Bobby Art International (supra) [23]
110 See Raj Kapoor (supra).
[2024] 7 S.C.R. 281
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
72.2. The recommendation that Sony Pictures make an awareness
film according to Section 7 (d) of the RPwD Act cannot be
granted.111 Section 7(d) is directed towards the appropriate
government. While we have underlined that the principle
of reasonable accommodation includes positive obligations
of private parties to support persons with disabilities and
facilitate their full participation, we cannot 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. A must-carry provision
under the Cinematograph Act, mandated exhibition of short
educational films as a licensing pre-condition for exhibitors.
The provision was upheld by this Court in Union of India
v. Motion Pictures Association112. The provision related to
exhibition of a pre-produced educational short film alongside
other films and it applied to exhibitors. 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 (supra) cannot be so extended to compel speech in
the manner suggested by the appellant.
72.3. On inclusion of subject matter experts to the Board and advisory
panels, we believe that the field is sufficiently occupied by the
Cinematograph Act and the certification Rules of 1983 and
2024 does not merit our interference. Under the 1983 Rules,
the Board may take steps to assess public reactions to films113.
The Examining Committee is supposed to include women as
its members114. 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
111 Section 7(d)- appropriate Government shall take protective measures against all forms of abuse,
violence and exploitation and shall (inter alia) create awareness and make available information among
the public.
112 [1999] 3 SCR 875 : (1999) 6 SCC 150 [Justice Sujata Manohar, 13-15]
113 1983 Rules, Rule 11; 2024 Rules, Rule 12.
114 1983 Rules, Rule 22.
282 [2024] 7 S.C.R.
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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.115
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 Committee116.
72.4. Courts have also placed adequate thrust on the fitness of these
expert committees to assess legal requirements beyond the
Cinematograph Act, even with their existing composition.117
In Raj Kapoor v. State118, a two-judge bench of this Court
noted that the certificate, which represented the judgment of
an expert body selected for judging the fitness of a film for
public exhibition, also included consideration of the ingredients
of other laws such as the Indian Penal Code119. Similarly, in
Prakash Jha (supra)120, this Court rejected a film ban founded
on public order. The Court noted that the film dealt with a
sensitive subject of reservations but it had been duly cleared
by examining committees comprising legal and subject matter
experts and members belonging to the Scheduled Castes/
Scheduled Tribes and Other Backward Class communities,
who had approved the screening of the film.
72.5. 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 as we noted at
the outset. It would be ideal if the statutory bodies included
subject matter experts. We believe the 2024 Rules are a
welcome acknowledgment of this principle and consultations
with subject matter experts on disability would certainly better
115 1983 Rules, Rules 41 (4) (c), (d).
116 2024 Rules, Rules 23 (3), 25 (3),
117 S Rangarajan (supra) [52].
118 [1980] 1 SCR 1081 : (1980) 1 SCC 43
119 Raj Kapoor (supra) [Justice Pathak, 26] – “Regard must be had by the court to the fact that the certificate
represented the judgment of a body of persons particularly selected under the statute for the purpose
of adjudging the suitability of films for public exhibition and that judgment extends to a consideration of
the principal ingredients which go to constitute offences under Sections 292 and 293 of the Indian Penal
Code.” (emphasis supplied). Also see [Justice Krishna Iyer, 14]
120 Prakash Jha Productions v. Union of India, (2011) 8 SCC 372 [13, 26]
[2024] 7 S.C.R. 283
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
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.121 The Court cannot read additional
requirements into unambiguous provisions.122 It is beyond the
remit of constitutional courts to specify the qualifications or
expertise that the constituents of these bodies must possess
or to direct that such a requirement be legislatively included
into the statute.123
72.6. The appellant has sought formulation of guidelines to restrict
content that contravenes the Constitution and the RPwD Act
2016. We have stated above that the guidelines under the Act
are quite extensive and cover the field. Such directions are
issued to fill legislative gaps.124 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 anyway125. Courts cannot
trench into policy-making.126 The High Court was therefore,
justified in not granting the abovementioned reliefs and we
cannot make recommendations to that effect.
73. 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)127. The
framework we wish to lay down is in line with our findings in Vikash
121 See Directorate of Film Festivals v Gaurav Ashwin Jain 2007 (4) SCC 737
122 Padma Sundara Rao v. State of Tamil Nadu, (2002) 3 SCC 533 [12. 14]
123 State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1 [33, 36]
124 P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 [25, 26]
125 See Raj Kapoor (supra)
126 Census Commissioner v. R Krishnamurthy, (2015) 2 SCC 796 [24-26]
127 See Indibly (supra)
284 [2024] 7 S.C.R.
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Kumar (supra) where we emphasised that the fundamental rights
under Part III of the Constitution apply with equal rigour to persons
with disabilities.
74. 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.128
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.129 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 model130;
(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;
128 Vikash Kumar (supra) [84]
129 Jeremy Waldron (supra)
130 See Vikash Kumar (supra) [84-86]
[2024] 7 S.C.R. 285
Nipun Malhotra v. Sony Pictures Films India Private Limited & Ors.
(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;131
131 “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%20About%20Us,and%20with%20persons%20
with%20disabilities.>
286 [2024] 7 S.C.R.
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(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.132 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.
75. The appeal shall stand disposed of in the above terms. There shall
be no order as to costs.
76. Pending application(s), if any, stand disposed of.
Result of the case: Appeal Disposed of.
†
Headnotes prepared by: Ankit Gyan
132 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”.
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