Delhi High Court: A Single Judge Bench of Prathiba M. Singh, J. directs Yash Raj Films to prepare audio description, subtitles, and closed captions for the movie “Pathaan” and submit the same to Central Board of Film Certification for re-certification of the film, so that the film could be made accessible to visually and hearing impaired persons.
Background
In the present case, Petitioners 1, 2 and 4 were visually impaired and Petitioner 3 was hearing impaired, and they had filed a petition against the respondents, namely, Yash Raj Films (producer of the film “Pathaan”), Ministry of Information and Broadcasting, Department of Empowerment of Persons with Disabilities and Amazon Seller Services Private Limited, to seek enforcement of various rights and accessibility requirements, as prescribed under the provisions of the Rights of Persons with Disabilities Act, 2016 (‘RPWD Act').
Submissions on behalf of the Petitioners
Petitioner 2 contended that various rights had been recognized for ‘persons with disabilities' under the RPWD Act but most films which were released in India were not catering to disabled persons. The following submissions were made:
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There are various tools that help make films disabled-friendly, but none of them have been implemented in the film “Pathaan”;
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The film “Pathaan” would be released in theatres on 25-1-2023 and apart from the subtitles being approved by the Central Board of Film Certification (CBFC), the film did not make available audio description and closed captions; and
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The producers of the film “Pathaan” should be directed to add the audio description, subtitles, and closed captions, before the release of the said film.
Petitioner 2 submitted that in certain foreign countries, the theatres made provisions for headphones to be plugged into the seats in the theatre, through which audio description was relayed in an audio format. Apart from this, persons with visual impairment could enjoy the audio description of the films through certain mobile applications which could be downloaded on a smartphone, so long as the producer had an arrangement with the said mobile applications and provided the requisite audio description of the film to the application. It was also submitted that there were two mobile applications available in India, namely, “XL Cinema” and “Shazacin”, which provided such facilities for visually impaired persons.
Submissions on behalf of the Respondents
Counsel for the respondents made the following submissions:
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The film “Pathaan” had already been approved by the CBFC and at the time of approval, the Producer had already submitted the subtitles for the film in the English language and had also received the certification for the film;
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The Producers had entered into an arrangement with the OTT platform Amazon Prime Video, for the OTT release of the film “Pathaan”; and
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The Producers were willing to take any reasonable steps required to ensure that its film was enjoyed by hearing and visually impaired persons.
Analysis, Law, and Decision
The Court opined that the petition raised important issues as to the accessibility to various modes of entertainment for the hearing and visually impaired persons. The Court noted that Section 42 of the RPWD Act showed that the Government had an obligation to take measures to ensure that all content was available in formats accessible to persons with disabilities. Further, the Court noted that in the context of the films, the measures that could be taken by film producers to make them accessible to the hearing and visually impaired persons were as under:
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Audio description– which implied the verbal depiction of key visual elements in media and live productions. This involved description of the visuals on screen to enable imagination by the hearing impaired;
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Subtitling– which provided a text alternative for the dialogue of video footage — the spoken words of characters, narrators, and other vocal participants, in the original language itself, as also, in the dubbed language in case of dubbed movies; and
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Closed Captions– which not only supplement dialogue but other relevant parts of the soundtrack like, describing background noises, phones ringing, and other audio cues that need describing.
The Court opined that the above-mentioned features would be integral to the enjoyment of films for persons with disabilities, thus, special measures would have to be taken for the hearing and visually impaired persons, inasmuch as the experience of watching a film in a movie theatre could not be denied to persons with disabilities as the technology for the same was readily available. The Court further opined that there were two aspects that would be required to be considered:
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directions as far as the film “Pathaan” was concerned, to make the said film comply with the prescribed accessibility standards, to the extent possible; and
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an overall solution that had to be found to ensure the implementation of the statutory provisions and other directions, to make films disabled-friendly for the hearing and visually impaired.
For the position of law as to the right to accessibility, the Court relied on Rajive Raturi v. Union of India, (2018) 2 SCC 413, wherein the Supreme Court held that “Right to Life under Article 21 of the Constitution of India was broad enough to incorporate the right to accessibility”. The Court further relied on Vikash Kumar v. UPSC, 2021 SCC OnLine SC 84, wherein the Supreme Court held that the State, as also, private parties were mandated to provide reasonable accommodation to persons with disabilities.
The Court held that these judgments show that accessibility was crucial and was enforceable as a legal right and even private parties had to ensure that ‘reasonable accommodation' measures were taken to enable greater accessibility for the hearing and visually impaired persons. The Court issued the following interim directions in relation to the release of the film “Pathaan” on the Amazon OTT platform:
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The Producer should prepare the audio description, the subtitles in the Hindi language, as also, the closed captions in both English and Hindi languages, and submit the same to the CBFC for approval.
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Upon the same being submitted, the CBFC should consider the re-certification of the film “Pathaan”, along with the audio description, the subtitles in the Hindi language, and the closed captions in both English and Hindi languages.
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If the Producer wished to enable greater accessibility for the film ‘Pathaan', in theatres, it may contact the operators of the mobile applications ‘XL Cinema' and ‘Shazacin', or other similar applications, if any, to explore the possibility of providing audio description, subtitles, and closed captions.
The matter would next be listed on 6-4-2023.
[Akshat Baldwa v. Yash Raj Films, 2023 SCC OnLine Del 195, decided on 16-1-2023]
Advocates who appeared in this case :
For the Petitioners: Rahul Bajaj, Petitioner 2 in person
For the Respondents: ASG Chetan Sharma
CGSC Ravi Prakash
Advocate Abhishek Malhotra
Advocate Shrishti Gupta
*Simranjeet Kaur, Editorial Assistant has reported this brief
