INDIBILITY CREATIVE PVT LTD & ORS. versus GOVT OF WEST BENGAL & ORS. on 11 April 2019

[2019] 5 S.C.R. 679

INDIBILITY CREATIVE PVT LTD & ORS.

v.

GOVT OF WEST BENGAL & ORS.

(Writ Petition (Civil) No. 306 of 2019)

APRIL 11, 2019

[DR DHANANJAYA Y. CHANDRACHUD AND

HEMANT GUPTA, JJ.]

Constitution of India – Arts. 19, 32 – Petitioners producedBengali film titled Bhobishyoter Bhoot, a social and political satireabout ghosts – Second petitioner-Director of the film received letteron 11 Feb. 19, four days prior to its scheduled release on 15 Feb.19, from the Joint Commissioner of Police (Intelligence), SpecialBranch to arrange prior screening of the film by 12 Feb. 19, statingthat inputs were received “that the contents of the film may hurtpublic sentiments which may lead to political law and order issues”– Responded by second petitioner – First petitioner-Company, co-producer of the film, proceeded with the release of the film on 15Feb. 19 – However, within a day of its release an overwhelmingmajority of the exhibitors abruptly took the film off their screens –Tickets were refunded to the viewers – Held: Police are not, in afree society, the self-appointed guardians of public morality –Uniformed authority of their force is subject to the rule of law –Joint Commissioner was not unmindful of the fact that the film hadbeen slated for release within a few days of his communication intheatres across the city of Kolkata and the State of West Bengal – Ifthere was any doubt over the entitlement of the producers to havethe film exhibited, it was laid to rest when the producers immediatelyinformed him of the film being CBFC (Central Board of FilmCertification) certified – Statutory authority to certify a film forpublic exhibition is vested in the CBFC under the provisions of the1952 Act – State Act (s.6, 1954 Act) and the Central Act (s.13,1952 Act) provide the conditions in which the State government, oras the case may be, the central government (or a local authority)may suspend the exhibition of a film, where it is likely to cause abreach of the peace – Any order issued under the terms of thesestatutory provisions is subject to statutory control as well as to the

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Asupervisory jurisdiction of the High Courts u/Art. 226 or, as thecase may be, the original jurisdiction of this Court u/Art.32 –Producer of a film certified by the CBFC needs to embark uponmeticulous arrangements including contracts for the exhibition ofthe film – Wielding of extra constitutional authority is destructive oflegitimate expectations – Letter addressed by INOX to the producerBspecifically mentions that they were directed by the authorities todiscontinue the screening in the ‘interest of the guests’ – This wasclear abuse of public power – West Bengal police overreached theirstatutory powers – Several interim directions were issued to the Stateof West Bengal, the Principal Secretary, Home and the DirectorCGeneral of Police vide Supreme Court’s orders dtd. 15 March 19and 25 March 19 – Confirmed – State restrained from takingrecourse to any form of extra constitutional means to prevent thelawful screening of the film and to ensure that the properties of thetheatre owners who exhibit the film are duly protected as are the viewers against attempts on their safety – As a consequence of theDpulling off of the film from the theatres, the petitioners have sufferedviolation of their fundamental right to free speech and expressionand of their right to pursue a lawful business – A remedy in publiclaw for the grant of remedial compensation is required in the presentcase – Respondents to pay to the petitioners Rs 20 lakhs asEcompensation – Petitioners also entitled to the costs of theproceedings quantified at Rs 1 lakh – Cinematograph Act 1952 –ss.4, 5, 5A, 5B, 13 – West Bengal Cinemas (Regulation) Act 1954 –s.6 – Public Law – Grant of remedial compensation.

Constitution of India – Art. 19(1)(a) – Right to freedom ofFspeech and expression – Exercise of – Duty of the State – Discussed.

Conclusion

The petitioners produced a Bengali film titled BhobishyoterBhoot, a social and political satire about ghosts. Second petitioner-Director of the film received letter on 11 Feb.19, four days priorto its scheduled release on 15 Feb. 19, from the JointGCommissioner of Police (Intelligence), Special Branch to arrangeprior screening of the film by 12 Feb. 19, stating that inputs werereceived “that the contents of the film may hurt public sentimentswhich may lead to political law and order issues”. Secondpetitioner responded by stating that these “inputs” had alreadybeen addressed by the Central Board of Film Certification (CBFC)H

before it issued clearance for the release of the film. Film releasedon 15 Feb. 19. However, within a day of its release anoverwhelming majority of the exhibitors abruptly took the filmoff their screens. The tickets were being refunded to the viewerswithout any reason being offered by the exhibitors. Hence, thepresent petition.

Allowing the writ petition, the Court

HELD: 1.1 The police are not in a free society the self-appointed guardians of public morality. The uniformed authorityof their force is subject to the rule of law. They cannot arrogateto themselves the authority to be willing allies in the suppressionof dissent and obstruction of speech and expression. The JointCommissioner was not unmindful of the fact that the film hadbeen slated for release within a few days of his communication intheatres across the city of Kolkata and the State. If there wasany doubt whatever over the entitlement of the producers to havethe film exhibited, it was laid to rest when the producersimmediately informed him of the film being CBFC certified. Thestatutory authority to certify a film for public exhibition is vestedin the CBFC under the provisions of the Cinematograph Act1952. Sections 4, 5, 5A and 5B provided a statutory code for theexamination and certification of films for public exhibition. Sub-section (1) of Section 5B provides for the grounds on which afilm may not be certified for public exhibition. An order refusingto grant certification is subject to the remedies stipulated in theAct. The State Act (Section 6 of the West Bengal Cinemas(Regulation) Act 1954) and the Central Act (Section 13 of theCinematograph Act 1952) provide the conditions in which thestate government, or as the case may be, the central government(or a local authority) may suspend the exhibition of a film, whereit is likely to cause a breach of the peace. Any order which isissued under the terms of these statutory provisions is subjectto statutory control as well as to the supervisory jurisdiction ofthe High Courts under Article 226 or, as the case may be, theoriginal jurisdiction of this Court under Article 32. These statutesare to be interpreted in the rule of law framework. An excess orabuse of statutory power is amenable to constitutional guaranteeswhich protect the citizen against arbitrary State action. The danger A

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Awhich this case exemplifies is the peril of subjecting the freedomof speech and expression of the citizen to actions which are notcontemplated by the statute and lie beyond the lawful exercise ofpublic power. All exercises of authority in pursuance of enablingstatutory provisions are amenable to statutory remedies and aresubject to judicial oversight under a regime of constitutionalBremedies. The exercise of statutory authority is not uncontrolledin a regime based on the rule of law. But what do citizens whohave a legitimate right to exhibit a film confront when they aretold that a film which is duly certified and slated for release isunceremoniously pulled off the exhibiting theatres without theCauthority of law? Such attempts are insidious and pose a gravedanger to personal liberty and to free speech and expression.They are insidious because they are not backed by the authorityof law. They pose grave dangers to free speech because thecitizen is left in the lurch without being informed of the causes orthe basis of the action. This has the immediate effect of silencingDspeech and the expression of opinion. Contemporary eventsreveal that there is a growing intolerance: intolerance which isunaccepting of the rights of others in society to freely espousetheir views and to portray them in print, in the theatre or in thecelluloid media. Organised groups and interests pose a seriousEdanger to the existence of the right to free speech and expression.If the right of the play-wright, artist, musician or actor were to besubjected to popular notions of what is or is not acceptable, theright itself and its guarantee under the Constitution would berendered illusory. The true purpose of art, as manifest in its myriadforms, is to question and provoke. Art in an elemental senseFreflects a human urge to question the assumptions on whichsocietal values may be founded. In questioning prevailing socialvalues and popular cultures, every art form seeks to espouse avision. Underlying the vision of the artist is a desire to find a newmeaning for existence. The artist, in an effort to do so, is entitledGto the fullest liberty and freedom to critique and criticize. Satireand irony are willing allies of the quest to entertain while at thesame time to lead to self-reflection. Art is as much for themainstream as it is for the margins. The Constitution protectsthe ability of every individual citizen to believe as much as tocommunicate, to conceptualize as much as to share. Public powerH

must be conscious of the fact that ours is a democracy simplybecause the Constitution recognizes the inalienable freedoms ofevery citizen. Power has been entrusted to the State by the peopleunder a written Constitution. The State holds it in trust and itsexercise is accountable to the people. The State does not entrustfreedoms to the people: the freedoms which the Constitutionrecognizes are inseparable from our existence as human beings.Freedom is the defining feature of human existence. Freedomsare not subject to power. Public power is assigned by the peopleto government. Ours is a controlled Constitution, a Constitutionwhich recognizes the fullest element of liberty and freedom andof the answerability of power to freedom. The views of the writerof a play, the metre of a poet or the sketches of a cartoonist maynot be palatable to those who are criticized. Those who disagreehave a simple expedient : of not watching a film, not turning thepages of the book or not hearing what is not music to their ears.The Constitution does not permit those in authority who disagreeto crush the freedom of others to believe, think and express.The ability to communicate ‘ideas’ is a legitimate area of humanendeavor and is not controlled by the acceptability of the viewsto those to whom they are addressed. When the ability to portrayart in any form is subject to extra constitutional authority, thereis a grave danger that fundamental human freedoms will beimperiled by a cloud of opacity and arbitrary State behaviour. Aproducer of a film which has been certified by the CBFC needsto embark upon meticulous arrangements including contracts forthe exhibition of the film. The wielding of extra constitutionalauthority is destructive of legitimate expectations. Under theconstitutional scheme, restrictions can only be imposed by orunder a law which is made by the State. The State of West Bengalinformed the Court that it had not taken recourse to its statutorypowers either under State or Union legislation. The apprehensionof the petitioners that this was an action which followed on theletter dated 11 February 2019 of the Joint Commissioner of Policeis not unfounded. The letter addressed by INOX to the producerspecifically mentions that they were directed by the authoritiesto discontinue the screening in the ‘interest of the guests’. Thiswas a clear abuse of public power. The police are entrusted withenforcing law. In the present case, the West Bengal police have ABC

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Aoverreached their statutory powers and became instruments in aconcerted attempt to silence speech, suborn views critical ofprevailing cultures and threaten law abiding citizens intosubmission. [Paras 16, 17][708-C-E; 709-A-C; 710-A-H;711-A-H; 712-A]

Issues

B1.2 The freedoms which are guaranteed by Article 19 areuniversal. Article 19(1) stipulates that all citizens shall have thefreedoms which it recognises. Political freedoms impose arestraining influence on the State by carving out an area in whichthe State shall not interfere. Hence, these freedoms are perceivedto impose obligations of restraint on the State. But, apart fromCimposing ‘negative’ restraints on the State these freedoms imposea positive mandate as well. In its capacity as a public authorityenforcing the rule of law, the State must ensure that conditions inwhich these freedoms flourish are maintained. In the spacereserved for the free exercise of speech and expression, the StateDcannot look askance when organized interests threaten theexistence of freedom. The State is duty bound to ensure theprevalence of conditions in which of those freedoms can beexercised. The instruments of the State must be utilized toeffectuate the exercise of freedom. When organized intereststhreaten the properties of theatre owners or the viewing audienceEwith reprisals, it is the plain duty of the State to ensure that speechis not silenced by the fear of the mob. In the present case, therehas been an unconstitutional attempt to invade the fundamentalrights of the producers, the actors and the audience. Worse still,by making an example out of them, there has been an attempt to Fsilence criticism and critique. Others who embark upon a similarventure would be subject to the chilling effect of ‘similarmisadventures’. This cannot be countenanced in a free society.Freedom is not a supplicant to power. By the orders of this Courtdated 15 March 2019 and 25 March 2019 several directions were issued to the State of West Bengal, the Principal Secretary, HomeGand the Director General of Police. The directions issued aremaintained and confirmed. A Mandamus is issued restraining theState from taking recourse to any form of extra constitutionalmeans to prevent the lawful screening of the feature filmBhobishyoter Bhoot. The State shall specifically ensure that theH

properties of the theatre owners who exhibit the film are dulyprotected as are the viewers against attempts on their safety.[Paras 18, 19][712-A-H]

1.3 As a consequence of the pulling off of the film from thetheatres where it was screened on 16 February 2019, thepetitioners have suffered a violation of their fundamental right tofree speech and expression and of their right to pursue a lawfulbusiness. This has been occasioned by the acts of commissionand, in any event, of omission on the part of the State in failing toaffirm, fulfill and respect the fundamental freedoms of thepetitioners. A remedy in public law for the grant of remedialcompensation is required in the present case. The respondentsare directed to pay to the petitioners compensation quantified atRs 20 lakhs within a period of one month from the date of thepresent judgment. The petitioners shall be entitled to the costsof the proceedings quantified at Rs 1 lakh, to be paid over withinone month. [Paras 20, 21][713-A-C]

Romesh Thapar v. State of Madras AIR 1950 SC124 : [1950] SCR 594 – followed.

Romesh Thapar v. State of Madras AIR 1950 SC124 : [1950] SCR 594 – followed.

Prakash Jha Productions v. Union of India (2011) 8SCC 372 ; Manohar Lal Sharma v. Sanjay LeelaBhansali (2018) 1 SCC 770 : [2017] SCR 111 ;Via Com Media Pvt Ltd v Union of India (2018) 1 SCC761 ; LIC v. Manubhai Shah (1992) 3 SCC 637 : [1992]3 SCR 595 ; Gajanan Visheshwar Birjur v. Union ofIndia (1994) 5 SCC 550 : [1994] 1 Suppl. SCR 466 ;S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574 :[1989] 2 SCR 204 ; D.C. Saxena v. Hon’ble The ChiefJustice of India (1996) 5 SCC 216 : [1996] 3 Suppl.SCR 677 ; KM Shankarappa v. Union of India (2001)1 SCC 582 : [2000] 5 Suppl. SCR 117 ; DirectorGeneral, Directorate General of Doordarshan v. AnandPatwardhan (2006) 8 SCC 433 : [2006] 5 Suppl.SCR 403 ; Prakash Jha Productions v. Union of India(2011) 8 SCC 372 ; Viacom 18 Media Pvt Ltd. v. Unionof India (2018) 1 SCC 671 – relied on.

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AAnand Chintamani Dighe v. State of Maharashtra 2001Cri LJ 2203 ; F.A. Picture International v. Central Boardof Film Certification, Mumbai AIR 2005 Bom 145 ;Vishesh Verma v. State of Bihar (2008) 56 (2) BLJR1773 ; Maqbool Fida Hussain v. Rajkumar Pandey 2008Cri LJ 4107 ; S. Tamilselvan v. State of Tamil NaduB2016 SCC OnLine Mad 5960 – referred to.

Case Law Reference

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) Np.306 of 2019.G

(Under Article 32 of the Constitution of India)

Mr. Sanjay Parikh, Sr. Adv., Ms. Rukhsana Choudhury, NarayanKrishan, Ms. Sanjana Srikumar, Ritwik Parikh, Gaurav Jain, Advs. forthe Petitioners.H

Dr. Abishek Manu Singhvi, Sr. Adv., Suhaan Mukerji, Ms. AsthaSharma, Amit Verma, Abhishek Manchanda, Ms. Kajal Dalal, AmitBhandari (for M/S. Plr Chambers And Co.), Advs. for the Respondents.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

1. Motivated by a mission to support meaningful Bengali cinema,the petitioners produced a film titled Bhobishyoter Bhoot. Theirgrievance, while invoking the jurisdiction of this Court under Article 32of the Constitution is that the State of West Bengal, its Department ofHome and the Kolkata Police have caused an “utterly unlawfulobstruction of the public exhibition of their Bengali feature film”. Simplyput, their grievance is summarized in the extract which we reproducefrom the first paragraph of the petition:

“The State of West Bengal is misusing police power and acting asa ‘super-censor’ sitting atop the CBFC and is violating thePetitioners’ fundamental rights guaranteed under Articles14,19(1)(a), 19(1)(g) and 21 of the Indian Constitution throughthe Kolkata Police which is under the Department of Home.”

2. The first petitioner is a company which was established in 2017.The second and third petitioners are its directors. They have co-producedthe film. The second petitioner has earlier produced MeghnadbodhRohoshyo, a Bengali feature film which was selected in the IndianPanorama section of the 48[th] International Film Festival of India at Goain 2017. Bhobishyoter Bhoot, translated to mean “future ghosts” hasbeen shortlisted in 2018 for the ARFF International – Barcelona JuryAward.

3. Bhobishyoter Bhoot is a social and political satire about ghostswho wish to make themselves relevant in the future by rescuing themarginalized and the obsolete. The film mourns the living dead. Itlaments the replacement of the outmoded cabaret with “item numbers”.In the same vein the film bemoans the decline of typists and horologistsof yesteryears with present day digital alternatives. The film dwells onthe pristine values of journalism, film making and politics, whichcontemporary society sees as compromised. Bengal has a rich cultureof stories about ghosts that are said to be “friendly and fun”. One of thecharacters conceived by the director in an earlier film is stated to be ahousehold name today among Bengalis. Anik Datta, the director of the A

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Afilm, is a protagonist of meaningful cinema. His films leave the viewer toreflect upon social and political issues. Known for films packed with wit,punch and humour, Datta produced Bhooter Bhobishyot (the future ofghosts), a comedy which popularized the use of ghosts as a visual artform in Bengali cinema. The film depicted the machinations of a rapaciousreal estate developer to convert a dilapidated old home into a mall. TheBfilm adopted the agency of ghosts as protectors of the haunted houseagainst builders. Datta’s second film ‘Ashcharjyo Prodeep’ has dealtwith the erosion of middle class values by the culture of consumerism.His third film ‘Meghnadbodh Rohoshyo’ is described as a politicalthriller which interweaves a theme involving Bengal of the 1970s withCits modern existence.

4. Bhobishyoter Bhoot has a UA certification for public exhibition,issued by the Central Board of Film Certification[1] on 19 November 2018.Prior to its national launch, the film was slated for release in Kolkata andsome districts of West Bengal on 15 February 2019. For nearly threeDweeks prior to its release, the film was promoted on electronic, print andsocial media to evince interest among its prospective viewers. On 11February 2019, four days prior to its scheduled release, the secondpetitioner is stated to have received a call from a number which wasdisplayed as [REDACTED] on his cell phone. According to the petitioners,the caller identified himself as Dilip Bandopadhyay of the State IntelligenceEUnit of the Kolkata Police. The caller stated that his office had receivedsome information regarding the film, which he was forwarding shortly.Soon enough, the second petitioner received a letter from the StateIntelligence Unit calling upon him to arrange a prior screening of the filmfor senior officials of the intelligence unit of Kolkata police by 12 FebruaryF2019. The letter stated that inputs were received “that the contents ofthe film may hurt public sentiments which may lead to political law andorder issues”. The second petitioner responded on 12 February 2019,stating that these “inputs” had already been addressed by the CBFCbefore it issued a clearance for the release of the film. The second petitioner stated that the decisions of this Court hold that it is not open toGany other authority or public office to interfere in such matters as thiswould violate the rule of law. The second petitioner categoricallyinformed Shri Dilip Bandopadhyay, the Joint Commissioner of Police(Intelligence), Special Branch, Kolkata that his office does not have the H1‘CBFC’

jurisdiction to seek ‘advance’ private screening prior to the release for a“few senior officials” on a “priority basis” as sought. No furthercommunication was received from the Kolkata police.

5. The first petitioner proceeded with the release of the film on 15February 2019. The first show was at 11.00 am. Another show was at5.50 pm for the press, cast and crew. According to the petitioners, thefilm was running to packed houses by Saturday, 16 February 2019. Thegrievance is that within a day of its release in Kolkata and a few districtsof West Bengal an overwhelming majority of the exhibitors abruptlytook the film off their screens on 16 February 2019 without acommunication from the producers. Tickets were being refunded to theviewers without any reason being offered by the exhibitors. Thepetitioners have averred that there was not even a single reported incidentpredicating concerns of law and order. When the director, together withsome members of the cast and crew, visited the exhibitor at Inox SouthCity to inquire why tickets were being refunded to viewers, the exhibitorcited unnamed “higher authorities” who they said had instructed them totake the film off the screens. Several exhibitors claimed that StationHouse Officers from the local police station had called or visited themand informed them in no uncertain terms to cease screening the filmwith immediate effect, failing which they would have to face the risk ofdamage to their cinema halls.

6. By the time that this Court was moved in the exercise of itsoriginal jurisdiction, the film had been taken off the screens which fallunder the jurisdiction of the Kolkata police. Of forty eight exhibitors andsixty screens, only two in upcountry districts of West Bengal continuedto exhibit the film. The unceremonious pulling out of the film received aconsiderable degree of press coverage in the print media. Among thearticles were those in the daily editions of: (i) Ananda Bazar Patrikadated 17.02.2019; (ii) The Telegraph dated 17.02.2019; (iii) Pratidin dated17.02.2019; (iv) The Times of India dated 17.02.2019; and (v) Aaj Kaaldated 17.02.2019. On 16 February 2019, the petitioners addressed acommunication to the exhibitors and to Eastern India Motion PicturesAssociation which represents the producers, directors, exhibitors, filmlaboratories and studio owners. E-mails were addressed to the largeexhibitors – Inox movies, PVR cinemas and Cinepolis seeking explanationfor the abrupt withdrawal of the film. No response was received. The A

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Apetitioners also addressed a communication on 19 February 2019 to thePolice Commissioner, Kolkata seeking a clarification on whether thepolice had instructed exhibitors to refrain from screening the film. Thepetitioners sought an assurance that their fears were misplaced. Theseefforts were met with silence. In sum and substance, the apprehensionof the petitioners is that there has been an unlawful interference withBthe public exhibition of the film by an organized and concerted effort onthe part of the authorities of the State including the Intelligence Unit ofthe police in West Bengal. The petitioners have brought focus upon theconsternation expressed by doyens of theatre, literature and films inWest Bengal. These protests from a cross section of personalities haveCbeen described in the petition:

“Several eminent personalities have strongly condemned theremoval of the Film from the halls of Kolkata. They includeSoumitra Chatterjee renowned poet, theatre and veteran film actorin Pather Panchali and several other Bengali films, winner of theDDadasaheb Phalke award, Aparna Sen, actor, screenwriter,filmmaker and director of well known films including 36Chowringee Lane, Budhadeb Dasgupta, renowned poet andcontemporary Bengali film-maker, Director, Bibhash Chakrabortywell known Bengali theatre personality. Several actors ofcontemporary Bengali cinema have staged protests andEdemonstrations in Kolkata and they include SabhyasachiChakraborty (of Feluda fame), Koushik Sen, Soheg Sen, ChandanSen, Deboleena Datta, Chandrayee Ghosh, Barun Chanda andseveral others including the director of the film, Anik Datta, theco-script writer Utsav Mukherji. There have been several meetingsFand talks to decry the obstruction posed to the freedom of speechand expression of cinema artists, directors and producers. Therehave been open letters addressed to the State despite which therehas been no response.”

In this backdrop, recourse to the jurisdiction of this Court hasGbeen taken to protect the fundamental right to free speech and expressionof the petitioners and the audience, besides the rights to personal libertyand to the protection of business.

7. The basis on which the jurisdiction has been invoked is that:

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(i) The film having received certification for public exhibitionby CBFC, the obstruction caused by the state of West Bengalthrough its Home Department and the Kolkata police amountsto a subversion of the rule of law;

(ii) These acts of obstruction to the public exhibition of the filmamount to a defiance of the law declared by this Courtaccording to which a film which has been cleared by theCBFC cannot be subject to censorship by the state nor canthe state raise issues of law and order to restrain its exhibition;

(iii) The attempt by the functionaries of the state to interferewith the exhibition of the film is destructive of the freedomof speech and expression;

(iv) CBFC as an expert body is entrusted with the statutory powerunder the Cinematograph Act to determine whether a filmshould be certified for public viewing and constitutes the solerepository of that power; and

(v) The extra constitutional method which has been adopted bythe state and its agencies is destructive of the fundamentalrights of the petitioners, besides being contrary to the legalprinciples enunciated in the decisions of this Court in PrakashJha Productions v Union of India[2], Manohar Lal Sharmav Sanjay Leela Bhansali[3]and Via Com 18 Media PvtLtd v Union of India[4], among others. The petitioners invokethe Mandamus of the Court to (i) restrain the first, secondand third respondents from obstructing the unhinderedexhibition of the film; (ii) abide by the certificate issued bythe CBFC; (iii) provide police protection to those involved inthe exhibition of the film and the audience at the theatres;and (iv) uphold the rule of law and preserve law and orderfor unhindered exhibition and viewing of the film.

8. When the petition came up for hearing before this Court on 15March 2019, notice and interim directions were issued directing the ChiefSecretary and the Principal Secretary of the Department of Home inthe Government of West Bengal to ensure that no obstruction or restraint 2(2011) 8 SCC 3723(2018) 1 SCC 7704(2018) 1 SCC 761

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Aof any kind whatsoever is imposed on the film being screened in thetheatres. The interim direction was in the following terms:

“We specifically direct the Chief Secretary and the PrincipalSecretary, Department of Home, Government of West Bengal toensure that no obstruction or restraint of any kind whatsoever isBimposed on the viewing of the film or on the film being screenedin theatres.

We direct the Chief Secretary, the Principal Secretary, Departmentof Home and the Director General of Police, State of West Bengalto ensure that adequate arrangements for security are made toCfacilitate the screening of the film and to ensure that the viewersand the audience are not endangered and there is no danger tothe property of the theatres where the film is being or will bescreened.”

The justification for the above interim directions was set out inthe interim order:D

“Repeatedly, in decisions of this court, it has been held that oncea film has been duly certified by CBFC, it is not open to anyauthority either of the State Government or otherwise to issueformal or informal directions preventing the producer from havingEthe film screened. Such actions of the State directly impinge uponthe fundamental right to the freedom of speech and expressionguaranteed under Article 19(1) of the Constitution of India.”

9. When the petition came up on 25 March 2019, Dr AbhishekManu Singhvi, learned senior counsel appearing on behalf of therespondents informed the Court that in pursuance of the earlier directions,Fthe Additional Director General and Inspector General of Police (Lawand Order), West Bengal, addressed letters dated 19 March 2019 to (i)District Superintendents of Police; (ii) Commissioners of Police (includingof Kolkata); (iii) Range Deputy Inspectors General of Police; (iv) ZonalInspectors General of Police; and (v) the Additional Director General ofGPolice, South Bengal, forwarding a copy of the order of this Court for“information and necessary compliance”. A similar communication dated18 March 2019 was addressed by the Principal Secretary, Departmentof Home, Government of West Bengal to the Commissioner of Police,Kolkata for compliance with the order of this Court. A statement wasalso made before this Court on behalf of the respondents that neitherH

has the film been banned by the Government of West Bengal nor hasrecourse been taken to the powers contained in Section 6 of the WestBengal Cinemas (Regulation) Act 1954 or Section 13 of theCinematograph Act 1952. Dr Singhvi filed a chart indicating that the filmwas presently running in ten theatres. Mr Sanjay Parikh, learned counselappearing on behalf of the petitioners submitted that the chart indicatedthat all the theatres where the film was being screened were situatedoutsideKolkata. Taking note of the grievance that following thecommunication addressed on 11 February 2019 by the Joint Commissionerof Police (Intelligence) of the Special Branch, the theatres where thefilm was being exhibited were compelled to stop screening the film, thisCourt observed:

“We are of the view that the Joint Commissioner of Police actedbeyond the scope of his legitimate authority in directing theproducer to arrange for a private screening of the film for a fewsenior officials, apprehending that the screening of the film maylead to “political law and order issues”.

The State of West Bengal is duty bound, once the film has beencertified by the Central Board of Film Certification (“CBFC”) totake necessary measures to protect the fundamental right to freespeech and expression of the producer and the director and, forthat matter, of the viewers to see the film unrestrained by extraconstitutional restraints.”

Accordingly, this Court issued directions to the (i) JointCommissioner of Police to forthwith withdraw the communication thatwas addressed by him to the producer of the film on 11 February 2019;and (ii) Principal Secretary, Department of Home and Director Generalof Police, West Bengal to immediately issue communications to all thetheatres where the film was being originally screened intimating themthat there is no ban on the screening of the film and that the state shall incompliance with the order passed by this Court on 15 March 2019, takenecessary steps for protecting the properties of the theatre owners andthe safety of the members of the public who wish to view the film. ThisCourt called for affidavits of compliance from the Principal Secretary,Department of Home, Government of West Bengal and the DirectorGeneral of Police noting that “we will hold them accountable to ensurecompliance with the above direction”.

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A10. In pursuance of the directions which were issued on 25 March2019, the Director and Inspector General of Police, State of West Bengalhas filed an affidavit stating that he had issued letters to all exhibitorsand theatre owners where the film was being originally screened on 27March 2019 indicating that there neither was nor is any ban on thescreening of the film and the State government shall take necessaryBsteps for protecting the theatres exhibiting the film and for ensuring thesafety of the members of the public who wish to view the film. Thecommunications have been addressed to fifty-one establishments. ThePrincipal Secretary, Home has also filed a compliance affidavit enclosinga copy of the communication addressed to all theatres where the filmCwas being originally screened. On 25 March 2019, the Joint Commissionerof Police (Intelligence), Kolkata has withdrawn the letter addressed tothe producer of the film on 11 February 2019.

11. Now it is in this background, that the grievance which hasbeen addressed in the proceedings before this Court has to be assessed.D12. From the narration of facts, it has become evident thatBhobishyoter Bhoot was released in theatres in West Bengal, bothwithin and outside Kolkata on 15 February 2019. The release of the filmwas preceded a few days earlier by a letter on 11 February 2019 of theJoint Commissioner of Police (Intelligence) in the Special Branch to theEproducer seeking “a private screening of the movie for a few seniorofficials at this end at the earliest”. This was because, as he described,the inputs his office had received “that the contents of the film may hurtpublic sentiments which may lead to political law and order issues”.The film was pulled down by a majority of the theatres and out of fortyeight exhibitors, only two continued to display the film. This Court hasFbeen informed by the State of West Bengal that it has not taken recourseto its powers either under the West Bengal Cinemas (Regulation) Act1954 or the Cinematograph Act 1952. Yet, barring a couple of exceptions,all the theatre owners and exhibitors pulled the film off the radar. Oneof them, INOX Leisure Ltd eventually addressed a communication on 4GMarch 2019 to the producer stating that they were “directed by theauthorities to discontinue screening” of the film “keeping in mind theinterest of the guests”. In this backdrop, the legitimate grievance beforethe Court is that absent a recourse to the exercise of statutory power,the state and its agencies have resorted to extra constitutional means toabrogate the fundamental rights of the producer, director and the viewers.H

13. Commitment to free speech involves protecting speech that ispalatable as well as speech that we do not want to hear. A declarationattributed to Voltaire: “I despise what you say but will defend to thedeath your right to say it” encapsulates the essence of the protection offree speech. Protection of the freedom of speech is founded on thebelief that speech is worth defending even when certain individualsmay not agree with or even despise what is being spoken.[5] This principleis at the heart of democracy, a basic human right, and its protection is amark of a civilized and tolerant society.”[6]

The reasons to defend free speech are both moral and instrumental.Moral arguments for the defense of free speech range from a conceptionof what it is to be a person, to the idea that curtailments of speech andexpression are an infringement of an individual’s autonomy or dignity—either as a speaker or a listener, or both.[7] These arguments are based onthe intrinsic value of free speech for human beings rather than themeasurable consequences that might flow from preserving it.[8] Theinstrumental argument on the other hand is based on the notion thatpreserving free speech produces tangible benefits, whether in terms ofincreased personal happiness, a flourishing society, or even economicbenefits.“[9]

John Stuart Mill, one of the most influential philosophers andintellectuals of the nineteenth century, presented one of the first andperhaps what is still the most famous liberal defense of free speech.[10]His classical book On liberty continues to dominate philosophical debateabout free speech:

“Mill defends the view that extensive freedom of speech is aprecondition not just for individual happiness, but for a flourishingsociety. Without free expression, humankind may be robbed ofideas that would otherwise have contributed to its development.Preserving freedom of speech maximizes the chance of truthemerging from its collision with error and half-truth. It also 5Nigel Warburton, Free Speech: A Very Short Introduction (Oxford University Press 2009), at Page 27

6Id.

7Supra note 6, at Page 59

8Id

9Id, at Page 57.

10Freedom of Speech, Stanford Encyclopaedia of Philosophy, available at https:// plato.stanford.edu/entries/freedom-speech/#HarPriFreSpe AB

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Areinvigorates the beliefs of those who would otherwise be at riskof holding views as dead dogma.”[11]

This powerful defense of freedom of speech however is alsoaccompanied by a limitation on free expression, commonly referred toas the “harm principle”, which states that “the only purpose for whichBpower can be rightfully exercised over any member of a civilizedcommunity, against his will, is to prevent harm to others.”[12] While theapplication of the liberal principles developed by Mill extends to severalspheres, the sphere of free speech and expression was regarded to beparticularly important to him due to its connection with truth anddevelopment.[13] He emphasises the value of free speech in the followingCwords:

“Were an opinion a personal possession of no value except to theowner, if to be obstructed in the enjoyment of it were simply aprivate injury, it would make some difference whether the injurywas inflicted only on a few persons or on many. But the peculiarDevil of silencing the expression of an opinion is that it is robbingthe human race—those who dissent from the opinion still morethan those who hold it.”[14]

Ronald Dworkin argued that a government without extensivefreedom of speech would lack legitimacy and should therefore not beEcalled ‘“democratic”:

“Free speech is a condition of legitimate government. Laws andpolicies are not legitimate unless they have been adopted througha democratic process, and a process is not democratic ifgovernment has prevented anyone from expressing his convictionsFabout what those laws and policies should be.”[15]

Dworkin conceptualizes democracy not just as a formalisedstructure for decision-making but as a constitutional concept that allowsthe participation of all individuals, including minorities with potentially G

11Supra note 6, at Page 68

12Freedom of Speech, Stanford Encyclopaedia of Philosophy, available at https:// plato.stanford.edu/entries/freedom-speech/#HarPriFreSpe 13Supra note 6, at Page 73.

14Supra note 6, at Page 89.

15Ronald Dworkin, “The Right to Ridicule”, New York Review of Books, 23 MarchH 2006.

unconventional views.[16] This notion of democracy is inconsistent withthe idea of the state which restricts access to public debate, as suchrestrictions would fetter the understanding of democracy as a continuousprocess that can be shaped by all in society.[17]

Satire is a literary genre where “topical issues” are “held up toscorn by means of ridicule or irony.”[18] It is one of the most effective artforms revealing the absurdities, hypocrisies and contradictions in so muchof life. It has the unique ability to quickly and clearly make a point andfacilitate understanding in ways that other forms of communication andexpression often do not. However, we cannot ignore that like all formsof speech and expression, satirical expression maybe restricted inaccordance with the restrictions envisaged under Article 19(2) of theConstitution. For example, when satire targets society’s marginalized, itcan have the power to confirm and strengthen people’s prejudices againstthe group in question, which only marginalizes and disenfranchises themmore.

On 9 April 1980, James Baldwin engaged in a conversation withChinua Achebe (Conversations with James Baldwin edited by FredStanley and Louis H Pratt). Achebe posits that art has an abiding connectwith society:

“Art has a social purpose [and] art belongs to the people. It’s notsomething that is hanging out there that has no connection withthe needs of man. And art is unashamedly, unembarrassingly, ifthere is such a word, social. It is political; it is economic. The totallife of man is reflected in his art.”[19]

Albert Camus in his essays titled “Resistance, Rebellion andDeath” makes a profound statement of the connect between art andfreedom:

16Eric Barendt, Freedom of Speech, (2nd Edition, OUP, 2005) at pgs 18-19 as cited in Aoife O’Reilly, In Defence of Offence: Freedom of Expression, Offensive Speech, and the Approach of the European Court of Human Rights, 19 Trinity C.L. Rev. 234 (2016) .

17Id.

18Madhavi Goradia Divan, Facets of Media Law (Eastern Book Company 2013) at Page 154.

19Conversations with James Baldwin, University Press of Mississippi, 30 January 1989, (Fred L. Standley and Louis H. Pratt Eds).

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A“Art, by virtue of that free essence I have tried to define, uniteswhereas tyranny separates. It is not surprising, therefore, that artshould be the enemy marked out by every form of oppression. Itis not surprising that artists and intellectuals should have been thefirst victims of modern tyrannies… Tyrants know there is in thework of art an emancipatory force, which is mysterious only toBthose who do not revere it. Every great work makes the humanface more admirable and richer, and this is its whole secret. Andthousands of concentration camps and barred cells are not enoughto hide this staggering testimony of dignity. This is why it is nottrue that culture can be, even temporarily, suspended in order toCmake way for a new culture… There is no culture withoutlegacy… Whatever the works of the future may be, they willbear the same secret, made up of courage and freedom, nourishedby the daring of thousands of artists of all times and all nations.”[20]

Simone De Beauvoir tells us how every artist, situated in theDpresent uses her connect with reality to transcend social existence:

“In order for the artist to have a world to express he must first besituated in this world, oppressed or oppressing, resigned orrebellious, a man among men. But at the heart of his existence hefinds the exigence which is common to all men; he must first willEfreedom within himself and universally; he must try to conquer it:in the light of this project situations are graded and reasons foracting are made manifest.”[21]

14. A catena of decisions of this Court have emphasised the valueof freedom of speech and expression in our democracy. In one of theFfirst constitutional cases concerning the freedom of speech andexpression, Romesh Thapar v. State of Madras,[22] it was observed:

“Thus, very narrow and stringent limits have been set to permissiblelegislative abridgment of the right of free speech and expressionand this was doubtless due to the realisation that freedom of speechGand of the press lay at the foundation of all democraticorganizations, for, without free political discussion, no public 20Albert Camus and Justin O’Brien, Resistance, Rebellion, and Death, Random House, New York (1960).

21Simone De Beauvoir, The Ethics of Ambiguity, Bernard Frechtman (Translator).H22AIR 1950 SC 124

education, so essential for the proper functioning of the processesof popular Government, is possible.”

adjudicated upon two appeals which raised a common question of lawIn LIC v. Manubhai Shah, 23 a two-judge Bench of this Courtconcerning censorship of content by state-controlled entities. The firstappeal related to an academic publication criticizing Life InsuranceCorporation of India’s (“LIC”) schemes. While the reply to the paperhad been published in the magazine run by the LIC, the rejoinder by theauthor was not published. The second appeal arose from Doordarshan’srefusal to broadcast a documentary film based on the Bhopal GasTragedy. The Court set aside the decision of both these state-controlledentities, noting that there is a higher burden on publications run by publicfunds to reject content only on valid grounds. Justice A M Ahmadi (asthe learned Chief Justice then was) held thus:

“8… Every citizen of this free country, therefore, has the right toair his or her views through the printing and/or the electronic mediasubject of course to permissible restrictions imposed under Article19(2) of the Constitution. The print media, the radio and the tinyscreen play the role of public educators, so vital to the growth ofa healthy democracy. Freedom to air one’s views is the lifeline ofany democratic institution and any attempt to stifle, suffocate orgag this right would sound a death-knell to democracy and wouldhelp usher in autocracy or dictatorship. It cannot be gainsaid thatmodern communication mediums advance public interest byinforming the public of the events and developments that havetaken place and thereby educating the voters, a role consideredsignificant for the vibrant functioning of a democracy. Therefore,in any set-up, more so in a democratic set-up like ours,dissemination of news and views for popular consumption is amust and any attempt to deny the same must be frowned uponunless it falls within the mischief of Article 19(2) of theConstitution...”

In Gajanan Visheshwar Birjur v. Union of India,[24] the petitionerchallenged the confiscation of books containing the writings of MaoZedong which were imported from China under the provisions of the 23(1992) 3 SCC 63724(1994) 5 SCC 550

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ACustoms Act. The Court noted that the show-cause notices as well asthe final orders did not contain any specifications to indicate as to whythe confiscation was warranted under the notification. Speaking for atwo-judge Bench of this Court, Justice Jeevan Reddy opined:

“10. ...we must express our unhappiness with attempts at thoughtBcontrol in a democratic society like ours. Human history is witnessto the fact that all evolution and all progress is because of powerof thought and that every attempt at thought control is doomed tofailure. An idea can never be killed. Suppression can never be asuccessful permanent policy. Any surface serenity it creates is afalse one. It will erupt one day. Our Constitution permits a freeCtrade, if we can use the expression, in ideas and ideologies. Itguarantees freedom of thought and expression — the only limitationbeing a law in terms of clause (2) of Article 19 of the Constitution.Thought control is alien to our constitutional scheme...”

In S. Rangarajan v. P. Jagjivan Ram,[25] a Division Bench of theDMadras High Court had revoked the U-Certificate (“suitable for all ages”)granted to a Tamil film Ore Oru Gramathile dealing with the issue ofreservation. Justice Jagannatha Shetty on behalf of a three-judge Benchof this Court, emphasised upon the positive duty of the state to protectthe freedom of speech and expression thus:

E“We want to put the anguished question, what good is the protectionof freedom of expression if the State does not take care to protectit? If the film is unobjectionable and cannot constitutionally berestricted under Article 19(2), freedom of expression cannot besuppressed on account of threat of demonstration and processionsFor threats of violence. That would tantamount to negation of therule of law and a surrender to blackmail and intimidation. It is theduty of the State to protect the freedom of expression since it is aliberty guaranteed against the State. The State cannot plead itsinability to handle the hostile audience problem. It is its obligatoryduty to prevent it and protect the freedom of expression.”GThe Court also considered that the film had been already beenapproved by two Revising Committees:

“In this case, two Revising Committees have approved the film.The members thereof come from different walks of life with H25(1989) 2 SCC 574

variegated experiences. They represent the cross-section of thecommunity. They have judged the film in the light of the objectivesof the Act and the guidelines provided for the purpose. We do notthink that there is anything wrong or contrary to the Constitutionin approving the film for public exhibition.”

The Court concluded that the freedom of speech and expressioncould be restricted only under the limited circumstances in Article 19(2):

“Freedom of expression which is legitimate and constitutionallyprotected, cannot be held to ransom, by an intolerant group ofpeople. The fundamental freedom under Article 19(1)(a) can bereasonably restricted only for the purposes mentioned in Articles19(2) and the restriction must be justified on the anvil of necessityand not the quicksand of convenience or expediency. Opencriticism of Government policies and operations is not a groundfor restricting expression. We must practice tolerance to the viewsof others. Intolerance is as much dangerous to democracy as tothe person himself.”

In D.C. Saxena v. Hon’ble The Chief Justice of India[26],Justice K Ramaswamy, who delivered the opinion of the Court, opinedthus:

“30. Equally, debate on public issues would be uninhibited, robustand wide open. It may well include vehement, sarcastic andsometimes unpleasant sharp criticism of government and publicofficials. Absence of restraint in this area encourages a well-informed and politically sophisticated electoral debate to conformthe Government in tune with the constitutional mandates to returna political party to power. Prohibition of freedom of speech andexpression on public issues prevents and stifles the debate onsocial, political and economic questions which in the long termendangers the stability of the community and maximises the sourceand breeds for more likely revolution.”

In KM Shankarappa v. Union of India,[27] the vires of Section6(1) of the Cinematograph Act, 1952 was challenged. The section enabledthe Central Government to pass any order it may deem fit in relation to 26(1996) 5 SCC 21627(2001) 1 SCC 582

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Aany film which was pending before or decided by the Board or theAppellate Tribunal constituted under the Act, giving the CentralGovernment the power to review or revise the decisions of the Board orthe Tribunal. The Court rejected the argument that it was necessary forthe Central Government to retain such a power due to “publicresentment” towards certain films leading to law and order situations,Bafter the film had been cleared by the Board or Tribunal. A two-judgeBench of this Court held:

“We fail to understand the apprehension expressed by the learnedcounsel that there may be a law and order situation. Once anexpert body has considered the impact of the film on the publicCand has cleared the film, it is no excuse to say that there may bea law and order situation. It is for the State Government concernedto see that law and order is maintained. In any democratic societythere are bound to be divergent views. Merely because a smallsection of the society has a different view, from that as taken byDthe Tribunal, and choose to express their views by unlawful meanswould be no ground for the executive to review or revise a decisionof the Tribunal. In such a case, the clear duty of the Governmentis to ensure that law and order is maintained by taking appropriateactions against persons who choose to breach the law.”

EIn Director General, Directorate General of Doordarshanv. Anand Patwardhan,[28] a documentary film against communal violencewas rejected for telecast on Doordarshan. Part I was of the film hadbeen granted ‘U’ certificate and Part II was given ‘A’ certificate by theCensor Board. Speaking for a two-judge Bench of this Court, Justice AR Lakshmanan held:F

“44. In our opinion, the respondent has a right to convey hisperception on the oppression of women, flawed understanding ofmanhood and evils of communal violence through the documentaryfilm produced by him...The freedom of expression, which islegitimate and constitutionally protected, cannot be held to ransomGon a mere fall of a hat. The film in its entirety has a serious messageto convey and is relevant in the present context. Doordarshanbeing a State controlled agency funded by public funds could nothave denied access to screen the respondent’s documentary excepton specified valid grounds.”

It was further held:

“45. The refusal of the appellants to telecast the film in the currentcase in the face of unanimous recommendations by their owncommittees set up in accordance with the direction of this Courtis an issue to be addressed apart. The High Court of Bombay hasnot substituted its discretion for that of the authorities. On thecontrary, the High Court has ruled that when the decision-makingprocess has itself resulted in the recommendations to telecast, itis not open to Doordarshan to find other means just to circumventthis recommendation…”

In Anand Chintamani Dighe v. State of Maharashtra[29], theGovernment of Maharashtra had issued a notification declaring that everycopy of the play titled “Mee Nathuram Godse Boltoy” and its translationsin Gujarati or any other language would stand forfeited to the Government.In an order of the Bombay High Court granting a stay on the notification,one of us (DY Chandrachud, J.) opined thus:

“6..the strength of our society and the stability of the constitutionalstructure lies in its ability to accommodate a diversity of viewpoints and cultures. The maturity of a society committed to ademocratic way of life lies as much as in its respect for thosewho conform as in its deference for those who do not.

..

The Constitution preserves a healthy tradition of respect for thebeliever and the nonbeliever, the conservative as well as the liberal,those on the core as well as those on the periphery; the agnosticand heretic. The process of though control is alien to a set ofdemocratic values. It would indeed be a dangerous trend in societyif the fundamental rights of those who espouse views which runcontrary to the views held by the majority are to be trampled uponbecause they do not conform to the prevailing trend of thought.”

The Court held:

“15…the Constitution protects the creative expression of thoseengaged in human endeavour in the areas of fine art and culture.Article 19(1)(a) is, however, not the only article to which theprotection of literary activities can be traced...Coupled with this A

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Ais the right of the wider society and the community to know, toreceive information and be informed. The right to information, orthe right to know is an intrinsic facet of the right to life underArticle 21 of the Constitution. An informed citizenry must havethe means to receive news and information, and apart from this,to receive thoughts, perceptions and ideas. Those perceptions andBviewpoints may not be in conformity with widely held social,economic and political beliefs. A diversity of viewpoint promotesan ability on the part of the society to exercise a right of choice, aright to decide and the right to form perceptions which lie at thecore of the functioning of a democratic system…”

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In F.A. Picture International v. Central Board of FilmCertification, Mumbai,[30] the petitioner was denied certification by theCentral Board of Film Certification to exhibit a film on the grounds thatthe film was “full of gory visuals of violence and gruesome killings” andthat “certain characters have definite resemblance with the real lifeDpersonalities”. A Division Bench of the Bombay High Court quashedthe orders of the Central Board of Film Certification (CBFC) as well asthe appellate authority. One of us (D Y Chandrachud, J.) observed:

“12…Films which deal with controversial issues necessarily haveto portray what is controversial. A film which is set in the backdropEof communal violence cannot be expected to eschew a portrayalof violence... The director has available to him all the tools oftrade. Satire, humor and the ability to shock each one out of themundane levels of existence is what embellishes art forms. TheConstitution protects the right of the artist to portray social realityin all its forms. Some of that portrayal may take the form ofFquestioning values and mores that are prevalent in society. Thepower of literature lies in the ability of the writer to criticisecommonly held beliefs and ordinary human foibles. Equally, a writer,producer and director of a film have the discretion to depict thehorrors of social reality...”

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“The certifying authority and the Tribunal were palpably in errorin rejecting the film on the ground that it had characters whichbear a resemblance to real life personalities. The constitutional H30AIR 2005 Bom 145

protection under Article 19(1)(a) that a filmmaker enjoys is notconditioned on the premise that he must depict something whichis not true to life. The choice is entirely his. Those who holdimportant positions must have shoulders which are broadenough to accept with grace a critique of themselves.Critical appraisal is the cornerstone of democracy and thepower of the film as a medium of expression lies in its abilityto contribute to that appraisal.”

(Emphasis supplied)

In Vishesh Verma v. State of Bihar,[31] a Single Judge of thePatna High Court quashed criminal proceedings instituted against personsinvolved in the production of a television serial. It was alleged that thecharacters in the serial bore a resemblance to the family of a formerChief Minister of Bihar and the serial was an attempt to defame them.Justice Navaniti Prasad Singh held thus:

“9...a creative artist is free to project the picture of society or thepolitical system or the person in politics in the manner he perceives.They can make pungent political satire of political leaders or systemsubject of course to decency, morality and Public Order. Legitimatecreation by a creative artist cannot be gagged or suppressed onthe ground of intolerance of a section of super sensitive peoplenot used to hearing descent. This is the essence of democracyand we profess to live in a democratic country. People and moreso, Courts (including Judicial Magistrates) should realize this.”

In Maqbool Fida Hussain versus Rajkumar Pandey,[32](“Maqbool Fida Hussain”), the Petitioner was charged with obscenityand hurting religious sentiments for his painting which depicted India asa nude woman with her hair flowing in the form of Himalayas. JusticeSanjay Kishan Kaul (as he then was) upheld the artistic freedom of thepainter, noting thus:

“…Pluralism is the soul of democracy. The right to dissent is thehallmark of a democracy. In real democracy the dissenter mustfeel at home and ought not to be nervously looking over hisshoulder fearing captivity or bodily harm or economic and socialsanctions for his unconventional or critical views. There should 31(2008) 56 (2) BLJR 1773

322008 Cri LJ 4107

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Abe freedom for the thought we hate. Freedom of speech has nomeaning if there is no freedom after speech. The reality ofdemocracy is to be measured by the extent of freedom andaccommodation it extends.”

In Prakash Jha Productions v. Union of India,[33] the UPBGovernment sought to ban the screening of the film ‘Aarakshan’ dealingwith the issue of reservation, after it had been certified U/A by theCensor Board constituted under the Cinematograph Act. Notwithstandingthe certificate issued by the Board, the UP Government issued an orderunder Section 6(1) of the Uttar Pradesh Cinemas (Regulation) Act, 1955suspending exhibition of the film on the ground that it was likely to causeCa breach of peace. Following the ruling in K.M. Shankarappa v. Unionof India (supra), a two-judge Bench of this Court held:

“23. It is for the State to maintain law and order situation in theState and, therefore, the State shall maintain it effectively andpotentially. Once the Board has cleared the film for public viewing,Dscreening of the same cannot be prohibited in the manner as soughtto be done by the State in the present case. As held in K.MShankarappa (Supra) it is the responsibility of the StateGovernment to maintain law and order.”

In S. Tamilselvan versus State of Tamil Nadu,[34] a Tamil novelEwas alleged to narrate conventions that were ‘non-existent anddefamatory’ to the residents of a certain area. A Writ Petition was filedbefore the Madras High Court, alleging that state officials had succumbedto the demands of extra-judicial elements and forced the author towithdraw unsold copies of the book and tender an unconditional apology.FSpeaking for a Division Bench of the Madras High Court, Justice SanjayKishan Kaul (as he then was) referred to the decision in Maqbool FidaHussain (supra) and noted that there was a “requirement of positivemeasures of protection to be taken”. Taking into account the situation inthe case at hand, the Court held thus:

G“180… In such simmering circumstances, it was the bounden dutyof the State Government to ensure that the law and order situationdoes not go out of hand, but that ought not be achieved by placatinganyone who seeks to take the law and order in his own hand at 33(2011) 8 SCC 372H342016 SCC OnLine Mad 5960

the cost of the person who has peacefully expressed his/herview…and the authorities really were not neutral in the episode,but were possibly more concerned with the law and order scenario,as opposed to the freedom of expression of a single individual.

181... We may also say that the State and the police authoritieswould not be the best ones to judge such literary and culturalissues, which are best left to the wisdom of the specialists in thefield and thereafter, if need be, the Courts.”

In Viacom 18 Media Pvt Ltd. Versus Union of India,[35]a three-judge Bench of this Court granted a stay on notifications and ordersissued by some states banning the exhibition of the film ‘Padmavat’ andrestrained other States from issuing similar orders and notifications, afterthe Central Board of Film Certification had granted certification. One ofus (Justice Dipak Misra) (as the learned Chief Justice then was) heldthus:

“15… Once the parliamentary legislation confers the responsibilityand the power on a statutory Board and the Board grantscertification, non-exhibition of the film by the States would becontrary to the statutory provisions and infringe the fundamentalright of the petitioners.”

The Bench elucidated on the obligation of State authorities tomaintain law and order when the film is being exhibited:

“20. Keeping in view the fact situation, we have no hesitation instating by way of repetition and without any fear of contradictionthat it is the duty of the State to sustain the law and order situationwhenever the film is exhibited, which would also include providingpolice protection to the persons who are involved in the film/in theexhibition of the film and the audience watching the film, wheneversought for or necessary.”

15. An academic article expresses the problem with filmcensorship in India in the following words:

“Film censorship in India exemplified the distinction and the tensionbetween citizen and population that is a characteristic feature ofcontemporary democracy...though the discourse of democracy ispredicated on the figure of the citizen and its corollaries of 35(2018) 1 SCC 671

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Aautonomy, equal rights, and self-representation, the modernizingagendas of post-colonial nation-states like India presumepopulations which are the objects of government policy ratherthan as citizens…[36]

The approach of the authorities in the present case treats citizensBas “subjects” denying them the capacity for autonomy and self-determination, by vesting in the government wide authority to decide theforms of expression that these “subjects” can access and be “trustedwith having exposure to.”[37]

16. The police are not in a free society the self-appointed guardiansCof public morality. The uniformed authority of their force is subject tothe rule of law. They cannot arrogate to themselves the authority to bewilling allies in the suppression of dissent and obstruction of speech andexpression. The Joint Commissioner was not unmindful of the fact thatthe film had been slated for release within a few days of hiscommunication in theatres across the city of Kolkata and the State. IfDthere was any doubt whatever over the entitlement of the producers tohave the film exhibited, it was laid to rest when the producers immediatelyinformed him of the film being CBFC certified. The statutory authorityto certify a film for public exhibition is vested in the CBFC under theprovisions of the Cinematograph Act 1952. Sections 4, 5, 5A and 5BEprovided a statutory code for the examination and certification of filmsfor public exhibition. Sub-section (1) of Section 5B[38] provides for thegrounds on which a film may not be certified for public exhibition. Anorder refusing to grant certification is subject to the remedies stipulated 36Ganti T.2009, ‘ The Limits of Decency and the Decency of Limits’, as cited inFGautam Bhatia, Offend, Shock or Disturb: Free Speech under the Indian Constitution(Oxford University Press 2016), at Page 180

37Gautam Bhatia, Offend, Shock or Disturb: Free Speech under the Indian Constitution(Oxford University Press 2016), at Page 183385B Principles for guidance in certifying films –

(1) A film shall not be certified for public exhibition if, in the opinion of the authoritycompetent to grant the certificate, the film or any part of it is against the interests of 1G(the sovereignty and integrity of India) the security of the State, friendly relations withforeign States, public order, decency or morality, or involves defamation of contemptof court or is likely to incite the commission of any offence.

(2) Subject to the provisions contained in sub-section (1), the Central Governmentmay issue such directions as it may think fit setting out the principles which shall guidethe authority competent to grant certificates under this Act in sanctioning films forHpublic exhibition.

in the Act. The State Act (Section 6[39] of the West Bengal Cinemas(Regulation) Act 1954) and the Central Act (Section 13[40] of theCinematograph Act 1952) provide the conditions in which the stategovernment, or as the case may be, the central government (or a localauthority) may suspend the exhibition of a film, where it is likely to causea breach of the peace. Any order which is issued under the terms ofthese statutory provisions is subject to statutory control as well as to thesupervisory jurisdiction of the High Courts under Article 226 or, as thecase may be, the original jurisdiction of this Court under Article 32. Thesestatutes are to be interpreted in the rule of law framework. An excess 39Section 6 : Power of State Government or District Magistrate to suspend exhibitionof films in certain cases

(1) The State Government in respect of the whole of West Bengal or any part thereof,and a District Magistrate in respect of the area within his jurisdiction, may, if it or heis of

(2) Where an order under sub-section (1) has been issued by a District Magistrate, acopy thereof, together with a statement of the reasons therefor, shall forthwith beforwarded by the District Magistrate to the Commissioner of the Division comprisingthe district under the jurisdiction of the District Magistrate and such Commissionermay either confirm or discharge the order :

Provided that before confirming any such order, such Commissioner shall give topersons prevented from exhibiting the film, an opportunity of showing cause againstsuch order.

(3) An order made under this section shall remain in force for a period of two monthsfrom the date thereof, but the State Government may, in the case of an order made byitself, and the Commissioner may, in the case of an order made by a District Magistrateand confirmed by him, if it or he is of opinion that the order should continue in force,direct that the period of suspension or prohibition shall be extended by such furtherperiod or periods as it or he thinks fit.

40 Section 13 : Power of Central Government or local authority to suspend exhibitionof films in certain cases. 13.(1) The Lieutenant-Governor or, as the case may be, theChief Commissioner, in respect of the 1[whole or any part of a Union territory] and thedistrict magistrate in respect of the district within his jurisdiction, may, if he is ofopinion that any film which is being publicly exhibited is likely to cause a breach of thepeace, by order, suspend the exhibition of the film and during such suspension the filmshall be deemed to be an uncertified film in the state, part or district, as the case may be.(2) Where an order under sub-section (1) has been issued by the Chief Commissioner ora district magistrate, as the case may be, a copy thereof, together with a statement ofreasons therefore, shall forthwith be forwarded by the person making the same to theCentral Government, and the Central Government may either confirm or discharge theorder.

An order made under this section shall remain in force for a period of twomonths from the date thereof, but the Central Government may, if it is of opinion thatthe order should continue in force, direct that the period of suspension shall be extendedby such further period as it thinks fit.

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Aor abuse of statutory power is amenable to constitutional guaranteeswhich protect the citizen against arbitrary state action. The danger whichthis case exemplifies is the peril of subjecting the freedom of speech andexpression of the citizen to actions which are not contemplated by thestatute and lie beyond the lawful exercise of public power. All exercisesof authority in pursuance of enabling statutory provisions are amenableBto statutory remedies and are subject to judicial oversight under a regimeof constitutional remedies. The exercise of statutory authority is notuncontrolled in a regime based on the rule of law. But what do citizenswho have a legitimate right to exhibit a film confront when they are toldthat a film which is duly certified and slated for release is unceremoniouslyCpulled off the exhibiting theatres without the authority of law? Suchattempts are insidious and pose a grave danger to personal liberty and tofree speech and expression. They are insidious because they are notbacked by the authority of law. They pose grave dangers to free speechbecause the citizen is left in the lurch without being informed of the

causes or the basis of the action. This has the immediate effect ofDsilencing speech and the expression of opinion. Contemporary eventsreveal that there is a growing intolerance: intolerance which is unacceptingof the rights of others in society to freely espouse their views and toportray them in print, in the theatre or in the celluloid media. Organisedgroups and interests pose a serious danger to the existence of the rightEto free speech and expression. If the right of the play-wright, artist,musician or actor were to be subjected to popular notions of what is or isnot acceptable, the right itself and its guarantee under the Constitutionwould be rendered illusory. The true purpose of art, as manifest in itsmyriad forms, is to question and provoke. Art in an elemental sensereflects a human urge to question the assumptions on which societalFvalues may be founded. In questioning prevailing social values and popularcultures, every art form seeks to espouse a vision. Underlying the visionof the artist is a desire to find a new meaning for existence. The artist,in an effort to do so, is entitled to the fullest liberty and freedom tocritique and criticize. Satire and irony are willing allies of the quest toGentertain while at the same time to lead to self-reflection. We find in thefoibles of others an image of our own lives. Our experiences providemeaning to our existence. Art is as much for the mainstream as it is forthe margins. The Constitution protects the ability of every individualcitizen to believe as much as to communicate, to conceptualize as muchas to share. Public power must be conscious of the fact that ours is aH

democracy simply because the Constitution recognizes the inalienablefreedoms of every citizen. Power has been entrusted to the state by thepeople under a written Constitution. The state holds it in trust and itsexercise is accountable to the people. The state does not entrust freedomsto the people: the freedoms which the Constitution recognizes areinseparable from our existence as human beings. Freedom is the definingfeature of human existence. Freedoms are not subject to power. Publicpower is assigned by the people to government. Ours is a controlledConstitution, a Constitution which recognizes the fullest element of libertyand freedom and of the answerability of power to freedom. The viewsof the writer of a play, the metre of a poet or the sketches of a cartoonistmay not be palatable to those who are criticized. Those who disagreehave a simple expedient : of not watching a film, not turning the pages ofthe book or not hearing what is not music to their ears. The Constitutiondoes not permit those in authority who disagree to crush the freedom ofothers to believe, think and express. The ability to communicate ‘ideas’is a legitimate area of human endeavor and is not controlled by theacceptability of the views to those to whom they are addressed. Whenthe ability to portray art in any form is subject to extra constitutionalauthority, there is a grave danger that fundamental human freedoms willbe imperiled by a cloud of opacity and arbitrary state behaviour.

17. As this case indicates, a producer of a film which has beencertified by the CBFC needs to embark upon meticulous arrangementsincluding contracts for the exhibition of the film. The wielding of extraconstitutional authority is destructive of legitimate expectations. Underthe constitutional scheme, restrictions can only be imposed by or under alaw which is made by the State. The State of West Bengal has informedthe Court that it had not taken recourse to its statutory powers eitherunder state or union legislation. If that be so, there has to be someexplanation forthcoming before the Court why the film was simultaneouslyremoved from the theatres, at one stroke, shortly after release. Theapprehension of the petitioners that this was an action which followedon the letter dated 11 February 2019 of the Joint Commissioner of Policeis not unfounded. The letter addressed by INOX to the producerspecifically mentions that they were directed by the authorities todiscontinue the screening in the ‘interest of the guests’. We have nomanner of doubt that this was a clear abuse of public power. The policeare entrusted with enforcing law. In the present case, the West Bengalpolice have overreached their statutory powers and have become AB

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Ainstruments in a concerted attempt to silence speech, suborn views criticalof prevailing cultures and threaten law abiding citizens into submission.

18. The freedoms which are guaranteed by Article 19 areuniversal. Article 19(1) stipulates that all citizens shall have the freedomswhich it recognises. Political freedoms impose a restraining influence onBthe state by carving out an area in which the state shall not interfere.Hence, these freedoms are perceived to impose obligations of restrainton the state. But, apart from imposing ‘negative’ restraints on the statethese freedoms impose a positive mandate as well. In its capacity as apublic authority enforcing the rule of law, the state must ensure thatconditions in which these freedoms flourish are maintained. In the spaceCreserved for the free exercise of speech and expression, the state cannotlook askance when organized interests threaten the existence of freedom.The state is duty bound to ensure the prevalence of conditions in whichof those freedoms can be exercised. The instruments of the state mustbe utilized to effectuate the exercise of freedom. When organized interestsDthreaten the properties of theatre owners or the viewing audience withreprisals, it is the plain duty of the state to ensure that speech is notsilenced by the fear of the mob. Unless we were to read a positiveobligation on the state to create and maintain conditions in which thefreedoms guaranteed by the Constitution can be exercised, there is areal danger that art and literature would become victims of intolerance.EIn the present case, we are of the view that there has been anunconstitutional attempt to invade the fundamental rights of the producers,the actors and the audience. Worse still, by making an example out ofthem, there has been an attempt to silence criticism and critique. Otherswho embark upon a similar venture would be subject to the chilling effectFof ‘similar misadventures’. This cannot be countenanced in a free society.Freedom is not a supplicant to power.

19. This leads us to the issue of relief. By the orders of this Courtdated 15 March 2019 and 25 March 2019 several directions were issuedto the state of West Bengal, the Principal Secretary, Home and theGDirector General of Police. We maintain and confirm the directionswhich have been issued. We issue a Mandamus restraining the statefrom taking recourse to any form of extra constitutional means to preventthe lawful screening of the feature film Bhobishyoter Bhoot. The stateshall specifically ensure that the properties of the theatre owners whoexhibit the film are duly protected as are the viewers against attemptsHon their safety.

INDIBILITY CREATIVE PVT LTD. v. GOVT OF WESTBENGAL [DR. DHANANJAYA Y CHANDRACHUD, J.]

20. As a consequence of the pulling off of the film from the theatreswhere it was screened on 16 February 2019, the petitioners have suffereda violation of their fundamental right to free speech and expression andof their right to pursue a lawful business. This has been occasioned bythe acts of commission and, in any event, of omission on the part of thestate in failing to affirm, fulfill and respect the fundamental freedoms ofthe petitioners. We are clearly of the view that a remedy in public lawfor the grant of remedial compensation is required in the present case.We order and direct the respondents to pay to the petitioners compensationwhich we quantify at Rs 20 lakhs within a period of one month from thedate of the present judgment.

21. The Writ Petition is allowed in the above terms. The petitionersshall be entitled to the costs of the proceedings quantified at Rs 1 lakh, tobe paid over within one month.

Divya Pandey

Writ petition allowed.

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