Case Summary and Outcome

The Supreme Court of India held that a film did not violate the constitutionally protected rights of persons with disabilities despite its controversial portrayal of disabilities. After the trailer of the film had been released, a disability rights activist unsuccessfully approached the High Court on the grounds that the film perpetuated negative stereotypes of persons with disabilities. The Court emphasized the importance of context in media portrayals, recognizing that while freedom of speech is fundamental, it must not undermine the dignity of marginalized communities. It noted the film’s potential to reinforce negative stereotypes and issued guidelines for respectful and accurate representation of disabilities in media, emphasizing inclusive language, accurate depiction, and the inclusion of persons with disabilities in decision-making processes. However, the Court also upheld the existing regulatory framework for film certification, asserting that specific policy changes should be addressed by legislative bodies rather than judicial directives.

---

Facts

On October 3, 2023, Sony Pictures, released a movie in India titled ‘Aankh Micholi’, which is based on a family’s efforts to arrange a marriage of the daughter while hiding various disabilities that members of the family, including the protagonist, suffer from. The movie depicts disabilities as deficiencies, with dialogues suggesting that disabilities diminish a person’s worth and should be concealed during social interactions. 

On October 6, 2023, Nipan Malhotra, a disability rights activist, aggrieved by the portrayal of characters with physical impairments in the film, addressed a legal notice to Sony Pictures, objecting to the content depicted in the movie’s trailer. Malhotra said that the film’s introduction of certain characters suffering from disabilities was inappropriate and he sought relief, including punitive damages and a public apology from Sony Pictures. He also raised concerns about the film’s compliance with the Cinematograph Act, 1952, and the Rights of Persons with Disabilities Act, 2016, arguing that the Central Board of Film Certification (CBFC) had failed to fulfill its statutory duty to certify films in terms of the relevant guidelines .

Malhotra specifically highlighted instances in the film and trailer where medical conditions were misrepresented and derogatory terms were used to describe characters with disabilities. Examples include the misrepresentation of night blindness and the use of offensive language such as “bhulakkad baap” for a person with Alzheimer’s, “soundproof system” for a hearing-impaired individual, and “atki hui cassette” for someone with a speech impairment. Malhotra argued that the film perpetuated negative stereotypes and misconceptions about persons with disabilities, portraying them as subjects of ridicule rather than generating empathy or promoting inclusive representations.

In response, Sony Pictures maintained that the film’s overall message was one of overcoming challenges associated with disabilities. It argued that the film depicted the strength and agency of characters with disabilities, rather than pitying or ridiculing them and that the portrayal was protected by the freedom of speech and expression and was not derogatory or stereotypical.

The High Court of Delhi noted that Malhotra did not dispute Sony Pictures’s explanation that the film aimed to convey a positive message about overcoming disabilities. The High Court found that Malhotra’s primary challenge – that the film was offensive to persons with disabilities – was not substantiated and observed that the CBFC had certified the film for unrestricted public exhibition, and thus the relief sought was non-maintainable. The High Court emphasized the existence of government-issued guidelines under Section 5B(2) of the Cinematograph Act, which provided a comprehensive framework for film certification, including provisions for persons with disabilities. 

Malhotra appealed the High Court’s judgment to the Supreme Court of India. 

---

Decision Overview

Chief Justice Dr. Chandrachud and Justice Pardiwala heard the matter and delivered the decision. The primary issues before the Court were whether the film violates the constitutionally protected rights of persons with disabilities by perpetuating negative stereotypes and derogatory portrayals and whether there is a need to frame guidelines and recommendations for filmmakers to follow when addressing sensitive subjects like the rights of persons with disabilities in visual media. 

The Court analyzed the context of speech, particularly in cinematic portrayals, and examined the broader implications of how such speech affects marginalized groups, with a specific focus on persons with disabilities. It acknowledged that freedom of speech and expression, as guaranteed under Article 19(1)(a) of the Indian Constitution, is a cornerstone of democracy, enabling public debate and serving as a corrective mechanism for societal issues but underscored that this freedom is not absolute and must be balanced against the need to protect the dignity and rights of vulnerable groups.

The Court referred to the philosophical debate on the limits of free speech, citing Ronald Dworkin’s Forward in Extreme Speech and Democracy and Jeremy Waldron’s The Harm in Hate Speech. It noted that Dworkin argued that even hate speech should be protected to allow for robust public debate which he believed was necessary for the political legitimacy of anti-discrimination laws, but that Waldron had an opposing view that society has moved beyond the need to debate certain fundamental issues, such as race or disability, where the costs of allowing derogatory speech – namely, the harm to the dignity of marginalized group – outweigh the benefits. It stressed that Waldron’s perspective highlights the importance of considering the context in which speech occurs, particularly when it targets vulnerable communities. 

The Court held that emphasis on context is critical when analyzing the portrayal of persons with disabilities in media. It noted that, historically, the media has depicted disabilities in a negative light, reinforcing stereotypes that portray disabled individuals as objects of pity, ridicule, or burden and that such portrayals contributed to a societal view that disability is synonymous with deficiency, further entrenching the social and physical barriers that disabled individuals, rather than their impairments themselves. The Court found that these negative representations have long-term consequences, shaping public perceptions and reinforcing discriminatory practices that limit the opportunities and social participation of persons with disabilities. 

The Court looked at the role of humor, commenting that it “is a powerful medium of speech that can reinforce attitudes and influence behavior towards groups,” and that  [p]ejorative jokes may reinforce stereotypical assumptions about disabilities, validating abusive attitudes and practices towards persons with disabilities”. The Court stressed, however, that humor, however, also has a complex dual role for persons with disabilities, as it could be “both liberating and stigmatizing depending on the context of the joke and who is telling it.” [para. 31]

The Court referred to Indian jurisprudence to illustrate how stereotypes have been challenged in other contexts: it referred to Anuj Garg v. Hotel Association of India, where the Supreme Court had struck down a law that barred women from working in establishments where liquor was served, recognizing that the law was based on outdated and discriminatory stereotypes about gender roles; and Navtej Singh Johar v. Union of India, which decriminalized consensual homosexual acts, acknowledging that the law in question was rooted in harmful stereotypes about gender and sexuality. The Court stressed that these cases underscored the judiciary’s role in dismantling legal and societal structures that perpetuate inequality and discrimination, particularly when these structures are based on stereotypes. 

Applying this reasoning to the portrayal of disabilities in films, the Court emphasized that such portrayals must be scrutinized to ensure they do not reinforce harmful stereotypes or diminish the dignity of persons with disabilities. It noted that The Rights of Persons with Disabilities Act, 2016 (RPwD Act), “inspired by the Social Model of Disability”, marked a significant shift in how disability is understood in Indian law. [para. 34] The Court commented that the Act focuses on removing societal barriers that impede the full and equal participation of disabled individuals in society and emphasized that disability arises not from a person’s impairments but from the interaction between these impairments and a society that is not designed to accommodate them. Therefore, media portrayals that focus solely on the medical aspects of disability, or that depict disabled individuals as objects of pity or ridicule, are inconsistent with the principles of the RPwD Act. [paras. 34-36]

The Court analyzed international jurisprudence on equality and non-discrimination for persons with disabilities. It noted that the human rights approach to disability evolved in the latter half of the 20th century, incorporating disability into the “broader paradigm of rights that began with the UN’s Universal Declaration of Human Rights of 1948”. [para. 40] The Court highlighted that the Convention on the Rights of Persons with Disabilities (CRPD) aimed to “promote and protect and ensure the full and equal enjoyment of human rights and fundamental freedoms by persons with disabilities, emphasizing respect for their inherent dignity”. [para. 41] 

The Court examined cases from international Courts that exemplified the human rights approach to disability. It referred to the case of Glor v. Switzerland, where the European Court of Human Rights declared a consensus on protecting persons with disabilities against discrimination, and Bacher v. Austria, where the CRPD Committee emphasized that states must ensure equal access for persons with disabilities to public goods, services, and products in a manner that respects their dignity. [para. 46]

Regarding equality and non-discrimination, the Court observed that these principles were fundamental to all human rights treaties. It noted that the CRPD built on the experiences of other conventions, evolving the UN’s approach to equality and non-discrimination and highlighted that the CRPD Committee routinely observed various forms of discrimination against persons with disabilities, including negative portrayals and harmful stereotypes in the media. 

The Court emphasized that Indian jurisprudence aligned with the human rights approach to disability. It traced the foundation of laws for persons with disabilities to the guarantee of dignity as a core human right under Article 21 of the Constitution. The Court referenced its ruling in Vikash Kumar v. Union Public Service Commission, where it held that persons with disabilities were equally entitled to the rights enumerated in the Constitution even if not specifically mentioned, and also cited Ravindra Kumar Dhariwal v. Union of India, where it had 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. The Court noted that recent rulings reflected the judiciary’s evolving role in addressing the complex intersections of disability, gender, and mental health, enriching the discourse on equality. It emphasized that the legal framework stressed the need to prevent stigmatization and discrimination against individuals with disabilities, recognizing the profound impact on their sense of identity and dignity. 

In discussing the imperative that speech must not prejudice a marginalized community, the Court emphasized that Article 19(1)(a) was termed “perhaps the most precious of all the freedoms guaranteed by our Constitution” in Sakal Papers (P) Ltd v. Union of India. [para. 62] With reference to S. Rangarajan Etc vs P. Jagjivan Ram and Maneka Gandhi v. Union of India, the Court recognized that speech and expression formed a crucial part of democratic discourse and served as a corrective check on public policy but it also observed that normative stereotypes had deprived certain groups of participation in social debate. Referring to its judgment in Indibility Creative Private Limited v. Government of West Bengal, the Court held that satirical speech targeting marginalized groups may “confirm and strengthen people’s prejudices against the group in question, which only marginalizes and disenfranchises them more.” [para. 62]

The Court acknowledged the importance of distinguishing between “disability humour” and “disabling humour” and reiterated that, historically, humor had been used to mock and make jokes at the expense of persons with disabilities. [para. 63] However, the Court recognized that humor was increasingly being used as a sophisticated literary medium for engagement with society by persons with disabilities. [para. 65] The Court emphasized that disability humor could familiarize society with the lived experiences of persons with disabilities, dispel prejudicial myths, and sensitize people. [para. 65] It distinguished “disabling humour” that demeans and disparages persons with disabilities from “disability humour” which challenges conventional wisdom about disability. [para. 66]

Regarding the present case, the Court noted that Malhotra had invoked the writ jurisdiction of the High Court on the ground that the exercise of Sony Pictures’’s fundamental right to freedom of speech and expression contravened his rights under Articles 14, 15 and 21 of the Constitution by reinforcing stereotypes in the film. [para. 67] The Court observed that the High Court had not weighed the countervailing right of freedom of speech and expression of the filmmaker against the rights claimed by Malhotra. It stated that the freedom under Article 19(1)(a), including the creative freedom of the filmmaker, “cannot include the freedom to lampoon, stereotype, misrepresent or disparage those already marginalized”. [para. 70] With reference to the case of F.A. Picture International v. Central Board of Film Certification, the Court drew a parallel between a film set against the backdrop of communal violence and one that outright extols such violence.

The Court issued certain guidelines for filmmakers, regarding the provisions of the RPwD Act and the composition of the Board and the Advisory panel under the Cinematograph Act. First, the Court supported minimal interference with the decisions made by expert bodies under the Cinematograph Act concerning film exhibitions and emphasized that the Board should determine the line between acceptable and unacceptable portrayals of social issues based on broad guidelines. It noted that the certification of a film implies that the Board deemed its overall message compliant with the guidelines and the RPwD Act, and that interfering by removing parts of the film, especially when a disclaimer is included, is not recommended. Second, the Court rejected Malhotra’s recommendation for Sony Pictures to create an awareness film under Section 7(d) of the RPwD Act, as this section is intended for government entities, not private companies. The Court held that such a directive would amount to compelled speech, but was different from prior compelled speech cases under Article 19(1) of the Constitution. It added that the existing provisions under the Cinematograph Act for educational films were distinct and not applicable here. Third, the Court found that the inclusion of subject matter experts in film certification processes is already adequately addressed in the Cinematograph Act and the Certification Rules of 1983 and 2024. These rules allow the Board to consult experts if needed, and the 2024 Rules further enable regional officers to involve experts in film examinations. The Court held that the current framework sufficiently supports expert consultation without requiring additional interventions.

The Court laid out a framework for the portrayal of persons with disabilities in visual media. In respect of inclusive language, it said that media should avoid language that marginalizes or disparages persons with disabilities and should not perpetuate negative stereotypes or institutional discrimination. The Court stressed that there should be accurate representation and that filmmakers should ensure accurate depictions of medical conditions and avoid misleading portrayals that could entrench stereotypes. It also stated that the media should address the underrepresentation of persons with disabilities and reflect their diverse experiences and contributions and should avoid myths and stereotypes by presenting persons with disabilities as either objects of pity or superhuman, and rather provide a balanced view of their capabilities and challenges. The Court emphasized the principle of “nothing about us, without us” and stated that filmmakers should include persons with disabilities in decision-making processes and consultations regarding media content. [para. 74] The Court also recommended training for media creators on respectful and accurate portrayal of disabilities, including workshops on the social model of disability and the impact of media representations. 

The Court reaffirmed that while improvements to media representation are desirable, it cannot enforce specific qualifications for expert bodies or dictate policy changes.

Accordingly, the Court deemed the existing legal and regulatory framework sufficient, and that additional guidelines or changes should be implemented by legislative or policy-making bodies, not by the Court, and dismissed Malhotra’s appeal.

---