# INDIBILITY CREATIVE PVT LTD & ORS v. GOVT OF WEST BENGAL & ORS

- **Citation:** [2019] 5 S.C.R. 679
- **Court:** Supreme Court of India
- **Decided:** 2019-04-11
- **Bench:** Dr Dhananjaya Y. Chandrachud, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indibility-creative-pvt-ltd-ors-v-govt-of-west-bengal-ors-33727
- **Pages:** 35

## Headnote

Constitution of India - Arts. 19, 32 - Petitioners produced
Bengali film titled Bhobishyoter Bhoot, a social and political satire
about ghosts - Second petitioner-Director of the film received letter
on 11 Feb. 19, four days prior to its scheduled release on 15 Feb.
19, from the Joint Commissioner of Police (Intelligence), Special
Branch to arrange prior screening of the film by 12 Feb. 19, stating
that inputs were received "that the contents of the film may hurt
public sentiments which may lead to political law and order issues"
- Responded by second petitioner - First petitioner-Company, coproducer of the film, proceeded with the release of the film on 15
Feb. 19 - However, within a day of its release an overwhelming
majority of the exhibitors abruptly took the film off their screens -
Tickets were refunded to the viewers - Held: Police are not, in a
free 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 had
been slated for release within a few days of his communication in
theatres across the city of Kolkata and the State of West Bengal - If
there was any doubt over the entitlement of the producers to have
the film exhibited, it was laid to rest when the producers immediately
informed him of the film being CBFC (Central Board of Film
Certification) certified - Statutory authority to certify a film for
public exhibition is vested in the CBFC under the provisions of the
1952 Act - State Act (s.6, 1954 Act) and the Central Act (s.13,
1952 Act) provide the conditions in which the State government, or
as the case may be, the central government (or a local authority)
may suspend the exhibition of a film, where it is likely to cause a
breach of the peace - Any order issued under the terms of these
statutory provisions is subject to statutory control as well as to the
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679
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supervisory jurisdiction of the High Courts u/Art. 226 or, as the
case may be, the original jurisdiction of this Court u/Art.32 -
Producer of a film certified by the CBFC needs to embark upon
meticulous arrangements including contracts for the exhibition of
the film - Wielding of extra constitutional authority is destructive of
legitimate expectations - Letter addressed by INOX to the producer
specifically mentions that they were directed by the authorities to
discontinue the screening in the 'interest of the guests' - This was
clear abuse of public power - West Bengal police overreached their
statutory powers - Several interim directions were issued to the State
of West Bengal, the Principal Secretary, Home and the Director
General of Police vide Supreme Court's orders dtd. 15 March 19
and 25 March 19 - Confirmed - State restrained from taking
recourse to any form of extra constitutional means to prevent the
lawful screening of the film and to ensure that the properties of the
theatre owners who exhibit the film are duly protected as are the
viewers against attempts on their safety - As a consequence of the
pulling off of the film from the theatres, the petitioners have suffered
violation of their fundamental right to free speech and expression
and of their right to pursue a lawful business - A remedy in public
law for the grant of remedial compensation is required in the present
case - Respondents to pay to the petitioners Rs 20 lakhs as
compensation - Petitioners also entitled to the costs of the
proceedings 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 of
speech and expression - Exercise of - Duty of the State - Discussed.
The petitioners produced a Bengali film titled Bhobishyoter
Bhoot, a social and political satire about ghosts. Second petitionerDirector of the fi

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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 produced
Bengali film titled Bhobishyoter Bhoot, a social and political satire
about ghosts - Second petitioner-Director of the film received letter
on 11 Feb. 19, four days prior to its scheduled release on 15 Feb.
19, from the Joint Commissioner of Police (Intelligence), Special
Branch to arrange prior screening of the film by 12 Feb. 19, stating
that inputs were received "that the contents of the film may hurt
public sentiments which may lead to political law and order issues"
- Responded by second petitioner - First petitioner-Company, coproducer of the film, proceeded with the release of the film on 15
Feb. 19 - However, within a day of its release an overwhelming
majority of the exhibitors abruptly took the film off their screens -
Tickets were refunded to the viewers - Held: Police are not, in a
free 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 had
been slated for release within a few days of his communication in
theatres across the city of Kolkata and the State of West Bengal - If
there was any doubt over the entitlement of the producers to have
the film exhibited, it was laid to rest when the producers immediately
informed him of the film being CBFC (Central Board of Film
Certification) certified - Statutory authority to certify a film for
public exhibition is vested in the CBFC under the provisions of the
1952 Act - State Act (s.6, 1954 Act) and the Central Act (s.13,
1952 Act) provide the conditions in which the State government, or
as the case may be, the central government (or a local authority)
may suspend the exhibition of a film, where it is likely to cause a
breach of the peace - Any order issued under the terms of these
statutory provisions is subject to statutory control as well as to the
 [2019] 5 S.C.R. 679
679
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supervisory jurisdiction of the High Courts u/Art. 226 or, as the
case may be, the original jurisdiction of this Court u/Art.32 -
Producer of a film certified by the CBFC needs to embark upon
meticulous arrangements including contracts for the exhibition of
the film - Wielding of extra constitutional authority is destructive of
legitimate expectations - Letter addressed by INOX to the producer
specifically mentions that they were directed by the authorities to
discontinue the screening in the 'interest of the guests' - This was
clear abuse of public power - West Bengal police overreached their
statutory powers - Several interim directions were issued to the State
of West Bengal, the Principal Secretary, Home and the Director
General of Police vide Supreme Court's orders dtd. 15 March 19
and 25 March 19 - Confirmed - State restrained from taking
recourse to any form of extra constitutional means to prevent the
lawful screening of the film and to ensure that the properties of the
theatre owners who exhibit the film are duly protected as are the
viewers against attempts on their safety - As a consequence of the
pulling off of the film from the theatres, the petitioners have suffered
violation of their fundamental right to free speech and expression
and of their right to pursue a lawful business - A remedy in public
law for the grant of remedial compensation is required in the present
case - Respondents to pay to the petitioners Rs 20 lakhs as
compensation - Petitioners also entitled to the costs of the
proceedings 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 of
speech and expression - Exercise of - Duty of the State - Discussed.
The petitioners produced a Bengali film titled Bhobishyoter
Bhoot, a social and political satire about ghosts. Second petitionerDirector of the film received letter on 11 Feb.19, four days prior
to its scheduled release on 15 Feb. 19, from the Joint
Commissioner of Police (Intelligence), Special Branch to arrange
prior screening of the film by 12 Feb. 19, stating that inputs were
received "that the contents of the film may hurt public sentiments
which may lead to political law and order issues". Second
petitioner responded by stating that these "inputs" had already
been addressed by the Central Board of Film Certification (CBFC)
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before it issued clearance for the release of the film. Film released
on 15 Feb. 19. However, within a day of its release an
overwhelming majority of the exhibitors abruptly took the film
off their screens. The tickets were being refunded to the viewers
without any reason being offered by the exhibitors. Hence, the
present petition.
Allowing the writ petition, the Court
HELD: 1.1 The police are not in a free society the selfappointed guardians of public morality. The uniformed authority
of their force is subject to the rule of law. They cannot arrogate
to themselves the authority to be willing allies in the suppression
of dissent and obstruction of speech and expression. The Joint
Commissioner was not unmindful of the fact that the film had
been slated for release within a few days of his communication in
theatres across the city of Kolkata and the State. If there was
any doubt whatever over the entitlement of the producers to have
the film exhibited, it was laid to rest when the producers
immediately informed him of the film being CBFC certified. The
statutory authority to certify a film for public exhibition is vested
in the CBFC under the provisions of the Cinematograph Act
1952. Sections 4, 5, 5A and 5B provided a statutory code for the
examination and certification of films for public exhibition. Subsection (1) of Section 5B provides for the grounds on which a
film may not be certified for public exhibition. An order refusing
to grant certification is subject to the remedies stipulated in the
Act. The State Act (Section 6 of the West Bengal Cinemas
(Regulation) Act 1954) and the Central Act (Section 13 of the
Cinematograph Act 1952) provide the conditions in which the
state government, or as the case may be, the central government
(or a local authority) may suspend the exhibition of a film, where
it is likely to cause a breach of the peace. Any order which is
issued under the terms of these statutory provisions is subject
to statutory control as well as to the supervisory jurisdiction of
the High Courts under Article 226 or, as the case may be, the
original jurisdiction of this Court under Article 32. These statutes
are to be interpreted in the rule of law framework. An excess or
abuse of statutory power is amenable to constitutional guarantees
which protect the citizen against arbitrary State action. The danger
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which this case exemplifies is the peril of subjecting the freedom
of speech and expression of the citizen to actions which are not
contemplated by the statute and lie beyond the lawful exercise of
public power. All exercises of authority in pursuance of enabling
statutory provisions are amenable to statutory remedies and are
subject to judicial oversight under a regime of constitutional
remedies. The exercise of statutory authority is not uncontrolled
in a regime based on the rule of law. But what do citizens who
have a legitimate right to exhibit a film confront when they are
told that a film which is duly certified and slated for release is
unceremoniously pulled off the exhibiting theatres without the
authority of law? Such attempts are insidious and pose a grave
danger to personal liberty and to free speech and expression.
They are insidious because they are not backed by the authority
of law. They pose grave dangers to free speech because the
citizen is left in the lurch without being informed of the causes or
the basis of the action. This has the immediate effect of silencing
speech and the expression of opinion. Contemporary events
reveal that there is a growing intolerance: intolerance which is
unaccepting of the rights of others in society to freely espouse
their views and to portray them in print, in the theatre or in the
celluloid media. Organised groups and interests pose a serious
danger to the existence of the right to 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 is not acceptable, the
right itself and its guarantee under the Constitution would be
rendered illusory. The true purpose of art, as manifest in its myriad
forms, is to question and provoke. Art in an elemental sense
reflects a human urge to question the assumptions on which
societal values may be founded. In questioning prevailing social
values and popular cultures, every art form seeks to espouse a
vision. Underlying the vision of 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 to critique and criticize. Satire
and irony are willing allies of the quest to entertain while at the
same time to lead to self-reflection. Art is as much for the
mainstream as it is for the margins. The Constitution protects
the ability of every individual citizen to believe as much as to
communicate, to conceptualize as much as to share. Public power
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must be conscious of the fact that ours is a democracy simply
because the Constitution recognizes the inalienable freedoms of
every citizen. Power has been entrusted to the State by the people
under a written Constitution. The State holds it in trust and its
exercise is accountable to the people. The State does not entrust
freedoms to the people: the freedoms which the Constitution
recognizes are inseparable from our existence as human beings.
Freedom is the defining feature of human existence. Freedoms
are not subject to power. Public power is assigned by the people
to government. Ours is a controlled Constitution, a Constitution
which recognizes the fullest element of liberty and freedom and
of the answerability of power to freedom. The views of the writer
of a play, the metre of a poet or the sketches of a cartoonist may
not be palatable to those who are criticized. Those who disagree
have a simple expedient : of not watching a film, not turning the
pages of the book or not hearing what is not music to their ears.
The Constitution does not permit those in authority who disagree
to crush the freedom of others to believe, think and express.
The ability to communicate 'ideas' is a legitimate area of human
endeavor and is not controlled by the acceptability of the views
to those to whom they are addressed. When the ability to portray
art in any form is subject to extra constitutional authority, there
is a grave danger that fundamental human freedoms will be
imperiled by a cloud of opacity and arbitrary State behaviour. A
producer of a film which has been certified by the CBFC needs
to embark upon meticulous arrangements including contracts for
the exhibition of the film. The wielding of extra constitutional
authority is destructive of legitimate expectations. Under the
constitutional scheme, restrictions can only be imposed by or
under a law which is made by the State. The State of West Bengal
informed the Court that it had not taken recourse to its statutory
powers either under State or Union legislation. The apprehension
of the petitioners that this was an action which followed on the
letter dated 11 February 2019 of the Joint Commissioner of Police
is not unfounded. The letter addressed by INOX to the producer
specifically mentions that they were directed by the authorities
to discontinue the screening in the 'interest of the guests'. This
was a clear abuse of public power. The police are entrusted with
enforcing law. In the present case, the West Bengal police have
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overreached their statutory powers and became instruments in a
concerted attempt to silence speech, suborn views critical of
prevailing cultures and threaten law abiding citizens into
submission. [Paras 16, 17][708-C-E; 709-A-C; 710-A-H;
711-A-H; 712-A]
1.2 The freedoms which are guaranteed by Article 19 are
universal. Article 19(1) stipulates that all citizens shall have the
freedoms which it recognises. Political freedoms impose a
restraining influence on the State by carving out an area in which
the State shall not interfere. Hence, these freedoms are perceived
to impose obligations of restraint on the State. But, apart from
imposing 'negative' restraints on the State these freedoms impose
a positive mandate as well. In its capacity as a public authority
enforcing the rule of law, the State must ensure that conditions in
which these freedoms flourish are maintained. In the space
reserved for the free exercise of speech and expression, the State
cannot look askance when organized interests threaten the
existence of freedom. The State is duty bound to ensure the
prevalence of conditions in which of those freedoms can be
exercised. The instruments of the State must be utilized to
effectuate the exercise of freedom. When organized interests
threaten the properties of theatre owners or the viewing audience
with reprisals, it is the plain duty of the State to ensure that speech
is not silenced by the fear of the mob. In the present case, there
has been an unconstitutional attempt to invade the fundamental
rights of the producers, the actors and the audience. Worse still,
by making an example out of them, there has been an attempt to
silence criticism and critique. Others who embark upon a similar
venture would be subject to the chilling effect of 'similar
misadventures'. This cannot be countenanced in a free society.
Freedom is not a supplicant to power. By the orders of this Court
dated 15 March 2019 and 25 March 2019 several directions were
issued to the State of West Bengal, the Principal Secretary, Home
and the Director General of Police. The directions issued are
maintained and confirmed. A Mandamus is issued restraining the
State from taking recourse to any form of extra constitutional
means to prevent the lawful screening of the feature film
Bhobishyoter Bhoot. The State shall specifically ensure that the
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properties of the theatre owners who exhibit the film are duly
protected 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 the
theatres where it was screened on 16 February 2019, the
petitioners have suffered a violation of their fundamental right to
free speech and expression and of their right to pursue a lawful
business. This has been occasioned by the acts of commission
and, in any event, of omission on the part of the State in failing to
affirm, fulfill and respect the fundamental freedoms of the
petitioners. A remedy in public law for the grant of remedial
compensation is required in the present case. The respondents
are directed to pay to the petitioners compensation quantified at
Rs 20 lakhs within a period of one month from the date of the
present judgment. The petitioners shall be entitled to the costs
of the proceedings quantified at Rs 1 lakh, to be paid over within
one month. [Paras 20, 21][713-A-C]
Romesh Thapar v. State of Madras AIR 1950 SC
124 : [1950] SCR 594 - followed.
Prakash Jha Productions v. Union of India (2011) 8
SCC 372 ; Manohar Lal Sharma v. Sanjay Leela
Bhansali (2018) 1 SCC 770 : [2017] SCR 111 ;
Via Com Media Pvt Ltd v Union of India (2018) 1 SCC
761 ; LIC v. Manubhai Shah (1992) 3 SCC 637 : [1992]
3 SCR 595 ; Gajanan Visheshwar Birjur v. Union of
India (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 Chief
Justice 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 ; Director
General, Directorate General of Doordarshan v. Anand
Patwardhan (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. Union
of India (2018) 1 SCC 671 - relied on.
INDIBILITY CREATIVE PVT LTD. v. GOVT OF WEST
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Anand Chintamani Dighe v. State of Maharashtra 2001
Cri LJ 2203 ; F.A. Picture International v. Central Board
of Film Certification, Mumbai AIR 2005 Bom 145 ;
Vishesh Verma v. State of Bihar (2008) 56 (2) BLJR
1773 ; Maqbool Fida Hussain v. Rajkumar Pandey 2008
Cri LJ 4107 ; S. Tamilselvan v. State of Tamil Nadu
2016 SCC OnLine Mad 5960 - referred to.
Case Law Reference
(2011) 8 SCC 372
relied on
Para 7
[2017] SCR 111
relied on
Para 7
(2018) 1 SCC 761
relied on
Para 7
[1950] SCR 594
followed
Para 14
[1992] 3 SCR 595
relied on
Para 14
[1994] 1 Suppl. SCR 466
relied on
Para 14
[1989] 2 SCR 204
relied on
Para 14
[1996] 3 Suppl. SCR 677
relied on
Para 14
[2000] 5 Suppl. SCR 117
relied on
Para 14
[2006] 5 Suppl. SCR 403
relied on
Para 14
2001 Cri LJ 2203
referred to
Para 14
AIR 2005 Bom 145
referred to
Para 14
(2008) 56 (2) BLJR 1773
referred to
Para 14
2008 Cri LJ 4107
referred to
Para 14
(2011) 8 SCC 372
relied on
Para 14
(2018) 1 SCC 761
relied on
Para 14
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) Np.
306 of 2019.
(Under Article 32 of the Constitution of India)
Mr. Sanjay Parikh, Sr. Adv., Ms. Rukhsana Choudhury, Narayan
Krishan, Ms. Sanjana Srikumar, Ritwik Parikh, Gaurav Jain, Advs. for
the Petitioners.
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Dr. Abishek Manu Singhvi, Sr. Adv., Suhaan Mukerji, Ms. Astha
Sharma, Amit Verma, Abhishek Manchanda, Ms. Kajal Dalal, Amit
Bhandari (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. Their
grievance, while invoking the jurisdiction of this Court under Article 32
of the Constitution is that the State of West Bengal, its Department of
Home and the Kolkata Police have caused an "utterly unlawful
obstruction of the public exhibition of their Bengali feature film". Simply
put, their grievance is summarized in the extract which we reproduce
from the first paragraph of the petition:
"The State of West Bengal is misusing police power and acting as
a 'super-censor' sitting atop the CBFC and is violating the
Petitioners' fundamental rights guaranteed under Articles
14,19(1)(a), 19(1)(g) and 21 of the Indian Constitution through
the 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-produced
the film. The second petitioner has earlier produced Meghnadbodh
Rohoshyo, a Bengali feature film which was selected in the Indian
Panorama section of the 48th International Film Festival of India at Goa
in 2017. Bhobishyoter Bhoot, translated to mean "future ghosts" has
been shortlisted in 2018 for the ARFF International - Barcelona Jury
Award.
3. Bhobishyoter Bhoot is a social and political satire about ghosts
who wish to make themselves relevant in the future by rescuing the
marginalized and the obsolete. The film mourns the living dead. It
laments the replacement of the outmoded cabaret with "item numbers".
In the same vein the film bemoans the decline of typists and horologists
of yesteryears with present day digital alternatives. The film dwells on
the pristine values of journalism, film making and politics, which
contemporary society sees as compromised. Bengal has a rich culture
of stories about ghosts that are said to be "friendly and fun". One of the
characters conceived by the director in an earlier film is stated to be a
household name today among Bengalis. Anik Datta, the director of the
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film, is a protagonist of meaningful cinema. His films leave the viewer to
reflect upon social and political issues. Known for films packed with wit,
punch and humour, Datta produced Bhooter Bhobishyot (the future of
ghosts), a comedy which popularized the use of ghosts as a visual art
form in Bengali cinema. The film depicted the machinations of a rapacious
real estate developer to convert a dilapidated old home into a mall. The
film adopted the agency of ghosts as protectors of the haunted house
against builders. Datta's second film 'Ashcharjyo Prodeep' has dealt
with the erosion of middle class values by the culture of consumerism.
His third film 'Meghnadbodh Rohoshyo' is described as a political
thriller which interweaves a theme involving Bengal of the 1970s with
its modern existence.
4. Bhobishyoter Bhoot has a UA certification for public exhibition,
issued by the Central Board of Film Certification1 on 19 November 2018.
Prior to its national launch, the film was slated for release in Kolkata and
some districts of West Bengal on 15 February 2019. For nearly three
weeks prior to its release, the film was promoted on electronic, print and
social media to evince interest among its prospective viewers. On 11
February 2019, four days prior to its scheduled release, the second
petitioner is stated to have received a call from a number which was
displayed as 9830720982 on his cell phone. According to the petitioners,
the caller identified himself as Dilip Bandopadhyay of the State Intelligence
Unit of the Kolkata Police. The caller stated that his office had received
some information regarding the film, which he was forwarding shortly.
Soon enough, the second petitioner received a letter from the State
Intelligence Unit calling upon him to arrange a prior screening of the film
for senior officials of the intelligence unit of Kolkata police by 12 February
2019. The letter stated that inputs were received "that the contents of
the film may hurt public sentiments which may lead to political law and
order issues". The second petitioner responded on 12 February 2019,
stating that these "inputs" had already been addressed by the CBFC
before 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 to
any other authority or public office to interfere in such matters as this
would violate the rule of law. The second petitioner categorically
informed Shri Dilip Bandopadhyay, the Joint Commissioner of Police
(Intelligence), Special Branch, Kolkata that his office does not have the
1'CBFC'
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jurisdiction to seek 'advance' private screening prior to the release for a
"few senior officials" on a "priority basis" as sought. No further
communication was received from the Kolkata police.
5. The first petitioner proceeded with the release of the film on 15
February 2019. The first show was at 11.00 am. Another show was at
5.50 pm for the press, cast and crew. According to the petitioners, the
film was running to packed houses by Saturday, 16 February 2019. The
grievance is that within a day of its release in Kolkata and a few districts
of West Bengal an overwhelming majority of the exhibitors abruptly
took the film off their screens on 16 February 2019 without a
communication from the producers. Tickets were being refunded to the
viewers without any reason being offered by the exhibitors. The
petitioners have averred that there was not even a single reported incident
predicating concerns of law and order. When the director, together with
some members of the cast and crew, visited the exhibitor at Inox South
City to inquire why tickets were being refunded to viewers, the exhibitor
cited unnamed "higher authorities" who they said had instructed them to
take the film off the screens. Several exhibitors claimed that Station
House Officers from the local police station had called or visited them
and informed them in no uncertain terms to cease screening the film
with immediate effect, failing which they would have to face the risk of
damage to their cinema halls.
6. By the time that this Court was moved in the exercise of its
original jurisdiction, the film had been taken off the screens which fall
under the jurisdiction of the Kolkata police. Of forty eight exhibitors and
sixty screens, only two in upcountry districts of West Bengal continued
to exhibit the film. The unceremonious pulling out of the film received a
considerable degree of press coverage in the print media. Among the
articles were those in the daily editions of: (i) Ananda Bazar Patrika
dated 17.02.2019; (ii) The Telegraph dated 17.02.2019; (iii) Pratidin dated
17.02.2019; (iv) The Times of India dated 17.02.2019; and (v) Aaj Kaal
dated 17.02.2019. On 16 February 2019, the petitioners addressed a
communication to the exhibitors and to Eastern India Motion Pictures
Association which represents the producers, directors, exhibitors, film
laboratories and studio owners. E-mails were addressed to the large
exhibitors - Inox movies, PVR cinemas and Cinepolis seeking explanation
for the abrupt withdrawal of the film. No response was received. The
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petitioners also addressed a communication on 19 February 2019 to the
Police Commissioner, Kolkata seeking a clarification on whether the
police had instructed exhibitors to refrain from screening the film. The
petitioners sought an assurance that their fears were misplaced. These
efforts were met with silence. In sum and substance, the apprehension
of the petitioners is that there has been an unlawful interference with
the public exhibition of the film by an organized and concerted effort on
the part of the authorities of the State including the Intelligence Unit of
the police in West Bengal. The petitioners have brought focus upon the
consternation expressed by doyens of theatre, literature and films in
West Bengal. These protests from a cross section of personalities have
been described in the petition:
"Several eminent personalities have strongly condemned the
removal of the Film from the halls of Kolkata. They include
Soumitra Chatterjee renowned poet, theatre and veteran film actor
in Pather Panchali and several other Bengali films, winner of the
Dadasaheb Phalke award, Aparna Sen, actor, screenwriter,
filmmaker and director of well known films including 36
Chowringee Lane, Budhadeb Dasgupta, renowned poet and
contemporary Bengali film-maker, Director, Bibhash Chakraborty
well known Bengali theatre personality. Several actors of
contemporary Bengali cinema have staged protests and
demonstrations in Kolkata and they include Sabhyasachi
Chakraborty (of Feluda fame), Koushik Sen, Soheg Sen, Chandan
Sen, Deboleena Datta, Chandrayee Ghosh, Barun Chanda and
several others including the director of the film, Anik Datta, the
co-script writer Utsav Mukherji. There have been several meetings
and talks to decry the obstruction posed to the freedom of speech
and expression of cinema artists, directors and producers. There
have been open letters addressed to the State despite which there
has been no response."
In this backdrop, recourse to the jurisdiction of this Court has
been taken to protect the fundamental right to free speech and expression
of the petitioners and the audience, besides the rights to personal liberty
and 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 exhibition
by CBFC, the obstruction caused by the state of West Bengal
through its Home Department and the Kolkata police amounts
to a subversion of the rule of law;
(ii)
These acts of obstruction to the public exhibition of the film
amount to a defiance of the law declared by this Court
according to which a film which has been cleared by the
CBFC cannot be subject to censorship by the state nor can
the state raise issues of law and order to restrain its exhibition;
(iii) The attempt by the functionaries of the state to interfere
with the exhibition of the film is destructive of the freedom
of speech and expression;
(iv) CBFC as an expert body is entrusted with the statutory power
under the Cinematograph Act to determine whether a film
should be certified for public viewing and constitutes the sole
repository of that power; and
(v)
The extra constitutional method which has been adopted by
the state and its agencies is destructive of the fundamental
rights of the petitioners, besides being contrary to the legal
principles enunciated in the decisions of this Court in Prakash
Jha Productions v Union of India2, Manohar Lal Sharma
v Sanjay Leela Bhansali3 and Via Com 18 Media Pvt
Ltd v Union of India4, among others. The petitioners invoke
the Mandamus of the Court to (i) restrain the first, second
and third respondents from obstructing the unhindered
exhibition of the film; (ii) abide by the certificate issued by
the CBFC; (iii) provide police protection to those involved in
the exhibition of the film and the audience at the theatres;
and (iv) uphold the rule of law and preserve law and order
for unhindered exhibition and viewing of the film.
8. When the petition came up for hearing before this Court on 15
March 2019, notice and interim directions were issued directing the Chief
Secretary and the Principal Secretary of the Department of Home in
the Government of West Bengal to ensure that no obstruction or restraint
2(2011) 8 SCC 372
3(2018) 1 SCC 770
4(2018) 1 SCC 761
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of any kind whatsoever is imposed on the film being screened in the
theatres. The interim direction was in the following terms:
"We specifically direct the Chief Secretary and the Principal
Secretary, Department of Home, Government of West Bengal to
ensure that no obstruction or restraint of any kind whatsoever is
imposed on the viewing of the film or on the film being screened
in theatres.
We direct the Chief Secretary, the Principal Secretary, Department
of Home and the Director General of Police, State of West Bengal
to ensure that adequate arrangements for security are made to
facilitate the screening of the film and to ensure that the viewers
and the audience are not endangered and there is no danger to
the property of the theatres where the film is being or will be
screened."
The justification for the above interim directions was set out in
the interim order:
"Repeatedly, in decisions of this court, it has been held that once
a film has been duly certified by CBFC, it is not open to any
authority either of the State Government or otherwise to issue
formal or informal directions preventing the producer from having
the film screened. Such actions of the State directly impinge upon
the fundamental right to the freedom of speech and expression
guaranteed under Article 19(1) of the Constitution of India."
9. When the petition came up on 25 March 2019, Dr Abhishek
Manu Singhvi, learned senior counsel appearing on behalf of the
respondents informed the Court that in pursuance of the earlier directions,
the Additional Director General and Inspector General of Police (Law
and Order), West Bengal, addressed letters dated 19 March 2019 to (i)
District Superintendents of Police; (ii) Commissioners of Police (including
of Kolkata); (iii) Range Deputy Inspectors General of Police; (iv) Zonal
Inspectors General of Police; and (v) the Additional Director General of
Police, South Bengal, forwarding a copy of the order of this Court for
"information and necessary compliance". A similar communication dated
18 March 2019 was addressed by the Principal Secretary, Department
of Home, Government of West Bengal to the Commissioner of Police,
Kolkata for compliance with the order of this Court. A statement was
also made before this Court on behalf of the respondents that neither
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has the film been banned by the Government of West Bengal nor has
recourse been taken to the powers contained in Section 6 of the West
Bengal Cinemas (Regulation) Act 1954 or Section 13 of the
Cinematograph Act 1952. Dr Singhvi filed a chart indicating that the film
was presently running in ten theatres. Mr Sanjay Parikh, learned counsel
appearing on behalf of the petitioners submitted that the chart indicated
that all the theatres where the film was being screened were situated
outside Kolkata. Taking note of the grievance that following the
communication addressed on 11 February 2019 by the Joint Commissioner
of Police (Intelligence) of the Special Branch, the theatres where the
film was being exhibited were compelled to stop screening the film, this
Court observed:
"We are of the view that the Joint Commissioner of Police acted
beyond the scope of his legitimate authority in directing the
producer to arrange for a private screening of the film for a few
senior officials, apprehending that the screening of the film may
lead to "political law and order issues".
The State of West Bengal is duty bound, once the film has been
certified by the Central Board of Film Certification ("CBFC") to
take necessary measures to protect the fundamental right to free
speech and expression of the producer and the director and, for
that matter, of the viewers to see the film unrestrained by extra
constitutional restraints."
Accordingly, this Court issued directions to the (i) Joint
Commissioner of Police to forthwith withdraw the communication that
was addressed by him to the producer of the film on 11 February 2019;
and (ii) Principal Secretary, Department of Home and Director General
of Police, West Bengal to immediately issue communications to all the
theatres where the film was being originally screened intimating them
that there is no ban on the screening of the film and that the state shall in
compliance with the order passed by this Court on 15 March 2019, take
necessary steps for protecting the properties of the theatre owners and
the safety of the members of the public who wish to view the film. This
Court called for affidavits of compliance from the Principal Secretary,
Department of Home, Government of West Bengal and the Director
General of Police noting that "we will hold them accountable to ensure
compliance with the above direction".
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10. In pursuance of the directions which were issued on 25 March
2019, the Director and Inspector General of Police, State of West Bengal
has filed an affidavit stating that he had issued letters to all exhibitors
and theatre owners where the film was being originally screened on 27
March 2019 indicating that there neither was nor is any ban on the
screening of the film and the State government shall take necessary
steps for protecting the theatres exhibiting the film and for ensuring the
safety of the members of the public who wish to view the film. The
communications have been addressed to fifty-one establishments. The
Principal Secretary, Home has also filed a compliance affidavit enclosing
a copy of the communication addressed to all theatres where the film
was being originally screened. On 25 March 2019, the Joint Commissioner
of Police (Intelligence), Kolkata has withdrawn the letter addressed to
the producer of the film on 11 February 2019.
11. Now it is in this background, that the grievance which has
been addressed in the proceedings before this Court has to be assessed.
12. From the narration of facts, it has become evident that
Bhobishyoter Bhoot was released in theatres in West Bengal, both
within and outside Kolkata on 15 February 2019. The release of the film
was preceded a few days earlier by a letter on 11 February 2019 of the
Joint Commissioner of Police (Intelligence) in the Special Branch to the
producer seeking "a private screening of the movie for a few senior
officials 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 hurt
public sentiments which may lead to political law and order issues".
The film was pulled down by a majority of the theatres and out of forty
eight exhibitors, only two continued to display the film. This Court has
been informed by the State of West Bengal that it has not taken recourse
to its powers either under the West Bengal Cinemas (Regulation) Act
1954 or the Cinematograph Act 1952. Yet, barring a couple of exceptions,
all the theatre owners and exhibitors pulled the film off the radar. One
of them, INOX Leisure Ltd eventually addressed a communication on 4
March 2019 to the producer stating that they were "directed by the
authorities to discontinue screening" of the film "keeping in mind the
interest of the guests". In this backdrop, the legitimate grievance before
the Court is that absent a recourse to the exercise of statutory power,
the state and its agencies have resorted to extra constitutional means to
abrogate the fundamental rights of the producer, director and the viewers.
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13. Commitment to free speech involves protecting speech that is
palatable as well as speech that we do not want to hear. A declaration
attributed to Voltaire: "I despise what you say but will defend to the
death your right to say it" encapsulates the essence of the protection of
free speech. Protection of the freedom of speech is founded on the
belief that speech is worth defending even when certain individuals
may not agree with or even despise what is being spoken.5 This principle
is at the heart of democracy, a basic human right, and its protection is a
mark 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 conception
of what it is to be a person, to the idea that curtailments of speech and
expression are an infringement of an individual's autonomy or dignityeither as a speaker or a listener, or both.7 These arguments are based on
the intrinsic value of free speech for human beings rather than the
measurable consequences that might flow from preserving it.8 The
instrumental argument on the other hand is based on the notion that
preserving free speech produces tangible benefits, whether in terms of
increased personal happiness, a flourishing society, or even economic
benefits."9
John Stuart Mill, one of the most influential philosophers and
intellectuals of the nineteenth century, presented one of the first and
perhaps what is still the most famous liberal defense of free speech.10
His classical book On liberty continues to dominate philosophical debate
about free speech:
"Mill defends the view that extensive freedom of speech is a
precondition not just for individual happiness, but for a flourishing
society. Without free expression, humankind may be robbed of
ideas that would otherwise have contributed to its development.
Preserving freedom of speech maximizes the chance of truth
emerging from its collision with error and half-truth.