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Delhi HC directs Pathaan makers to include audio description, closed captioning for OTT clearance

The Delhi High Court on Monday directed the producer of Shah Rukh Khan-starrer Pathaan to prepare audio description, subtitles in Hindi and closed captioning and submit the same to the Central Board of Films Certification (CBFC) for a decision on re-certification of the film for OTT release of the movie.

Justice Prathiba M. Singh was dealing with a plea moved by persons with disabilities seeking enforcement of various rights and accessibility requirements as prescribed under the provisions of the Rights of Persons with Disabilities Act, 2016.

Filed by a law student, two lawyers and the Executive Director of the National Association for the Deaf, the plea sought a direction to the producer of the film to include audio descriptions, subtitles and closed captioning before the release of the movie. The plea further sought a direction to the Ministry of Information and Broadcasting and the Department of Empowerment of Persons with Disabilities in the Ministry of Social Justice and Empowerment to notify required standards for accessibility in this regard.

The case of the petitioners is that though various rights for persons with disabilities have been recognized under the 2016 Act, films which are released in India are still not catering to the disabled.

During the course of hearing, Advocate Rahul Bajaj, who is one of the petitioners appearing in person, submitted that the film Pathaan does not make available audio description, subtitling and closed captioning which is integral for persons with disabilities to enjoy the films which are being released. He informed the court that while subtitles for the film in question have been approved by the CBFC, the audio description and closed captioning have still not been made available. He further informed that the subtitling, even though made available is only in English and not in the language of the film. This, he alleged, makes it almost impossible for hearing and visually impaired persons to enjoy the movie.

Contending that a large number of films do not take care to provide the facilities required for its enjoyment by disabled persons, Bajaj submitted that though certain guidelines were issued in this regard in the past, the same have not been implemented and that there are no sanctions for non-compliance.

At this juncture, the court questioned as to how visually impaired persons would be able to enjoy films in a theatre. To this, Bajaj responded that in certain foreign countries, the theatres themselves make provision for headphones to be plugged into a seat through which the audio description is relayed into an audio format. He pointed out that such facility is, however, not available in most movie theatres in the country.

He added that despite this being the position, persons with visual impairment can enjoy the audio description of the films through certain applications such as XL Cinema and Shaza Cin, which can be downloaded on smartphones so long as the producer has an arrangement with the said application.

On the other hand, the counsel representing the film producer submitted that the film has already been approved by the CBFC and that even certification for the film has also been received. He, however, informed the court that the producer is willing to take any steps which may be required, in a reasonable manner, in order to enable that its films are enjoyed by hearing and visually impaired persons as well.

The counsel representing the central government pointed out that the Ministry of Information and Broadcasting had issued certain directions way back in October 2019to film producers’ associations and to the CBFC to use audio description and closed captioning in all films. In this regard, he sought time to obtain instructions as to the actual status of the said guidelines and the implementation thereof.

Noting that the instant petition raises “very important issues” as to the accessibility of entertainment to the hearing and visually impaired persons, the court observed that under Section 42 of the RPwD Act, the government has an obligation to take measures to ensure that all content is available in accessible formats for persons with disabilities.

“In the context of films, most importantly, 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, cannot be denied to such persons,” Justice Singh said in the order while noting that certain films in the past like Black and Dangal have also made available audio description, subtitling and closed captioning for persons with disabilities.

In lieu thereof, in relation to the OTT release of the film in question, the court directed the producer of the film to prepare audio description, subtitles and closed captioning in Hindi language within two weeks and submit the same to the CBFC for approval and re-certification. The court directed that a decision on re-certification of the film by the CBFC be taken by March 10.

The court further directed for impleadment of the Indian Broacasting and Digital Foundation as well as the Film Producers’ Association and the Ministry of Electronics and Information Technology to have an overall solution to the issues raised in the petition and issued notice to them.

“In the meantime, insofar as the theatrical exhibition of the film is concerned, if the Respondent No. 1 (Yash Raj Films) wishes to do so, they may contact the app providers to explore the possibility of providing audio description and subtitling for future films,” the court observed while slating the matter for hearing on April 6, 2023.

The movie, which is produced under the banner of Yash Raj Films, is scheduled to hit theatres on January 25 and is later expected to be released on Amazon Prime Video some time in April.

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