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INDIBILITY CREATIVE PVT LTD V. GOVT OF WEST BENGAL

Case Comment, Publications

                                                     Citation: Writ Petition (Civil) 306 of 2019

The case revolves around the Fundamental Right of Freedom of Speech and Expression, Article 19 (1) of the Indian Constitution. A ban was imposed on the screening of a Bengali film, Bhobishyoter Bhoot (Future Ghosts), due to its potential to cause violence and disturbance. The ban was later deemed unconstitutional and beyond the statutory power of State Authorities. The director and producers of the film were deemed to have been violated their fundamental right of freedom of speech and expression, as the film was certified by the Central Board of Film Certification. The ban resulted in significant losses for the petitioners. The State has an obligation to protect citizens’ rights and ensure law and order, considering the views of the opposition or public dissatisfaction. The state must prioritize the general public interest in all decisions.

FACTS OF THE CASE

  1. The Bengali film “Bhobishyoter Bhoot” (Future Ghosts) was produced by three petitioners, including a company, co-producers, and directors. 
  2.  The film is a political and social satire about ghosts who rescue the marginalized to gain attention.  
  3.  The film was scheduled to release on 15 February in West Bengal and Kolkata. However, three weeks before its release, petitioner no. 2 received a phone and letter asking for an advance screening for senior officials due to reports of potential political law and order issues. The petitioner responded that the film was already certified by the Central Board of Film Certification, and no other authority or public office could interfere. 
  4.  The film was removed from cinemas the next day as it was released on 15 February 2019, and tickets were refunded due to orders issued by Higher Authorities.  
  5.  The petitioner filed a writ petition under Article 32 of the Indian Constitution, claiming their Fundamental right, Freedom of Speech and Expression, has been violated. They apprehended the unlawful interference of the police and state authorities with the public exhibition of the film, with only two out of 48 exhibitors screening the film. 

IMPORTANT PROVISIONS

Article 19(1)(a): All citizens shall have the right to freedom of speech and expression

Article 19(1)(g): All citizens shall have the right to practise any profession, or to carry on any occupation, trade or business.

Article 19(2): Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Article 21: Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

Section 13, Cinematographic Act,1952: Power of Central Government or local authority to suspend exhibition of films in certain cases.

Section 5B (1), Cinematographic Act,1952: Provides the principles for guidance in certifying flims.

Sec 6, West Bengal Cinemas (Regulation) Act,1954: Gives the state and district magistrate to suspend or prohibit exhibition of a film which is likely to cause a breach of peace.

ISSUE RAISED

  1. Whether the State was empowered to cast a blanket ban on a film that had been duly certified by the Central Board of Film Certification? 
  1. Did the State resort to unconstitutional means to stop the screening of the film which in turn deprived the petitioners of their fundamental rights? (Here mainly, the Right to Freedom of Speech and Expression in this case)

CONTENTION

The petitioners argued that the film had already received certification for public exhibition by CBFC and hence the impediment caused by the state of West Bengal through its Home Department and Kolkata police has amounted to violation of the rule of law. They also argued that such acts of obstacle to the public exhibition of the film amounts to a subversion of the law declared by the Court according to which a film have been cleared by the CBFC cannot be subjected to censorship by the state nor can the state raise any issue of law and order to restrain its exhibition. It was also contended that 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 and that, CBFC is an expert body entrusted with the statutory power under Cinematograph Act to determine whether a film should be certified for public viewing and is the sole repository of that power. Further they contended that the extra constitutional method adopted by the state and its agencies blatantly violates the fundamental rights of the petitioners under article 19 (1)(a) , 19 (1)(g) and Article 21 of the Indian Constitution.

The respondents argued that they anticipated a threat to law and order due to a political satire. They explained that the Additional Director General and Inspector General of Police in West Bengal sent letters to various police authorities, including District Superintendents, Commissioners, Range Deputy Inspectors, Zonal Inspectors, and Additional Director General of Police, South Bengal, for information and compliance. The Principal Secretary of the Department of Home also addressed the Commissioner of Police, Kolkata. The respondents stated that the film was not banned by the Government of West Bengal or used the powers of Section 6 of the West Bengal Cinemas (Regulation) Act 1954 and Section 13 of the Cinematograph Act 1952. They also mentioned that the film was being displayed by ten exhibitors at the time.

JUDGEMENT

The court emphasized the importance of freedom of expression in a democracy, citing philosophers like Voltaire, Camus, and Simone de Beauvoir. It emphasized that freedom of speech and expression is not based on acceptance or rejection, but on the right to know, receive information, and be informed. The court ruled that authorities hindering the screening of a film violated both freedom of expression and the public’s right to be informed. The court declared that the State interfered with freedom of speech and expression, both in commission and omission, and held that there was a violation of the Petitioners’ rights under Article 19(1)(a) of the Constitution. The court directed the Respondents to pay Rs. 20 lakhs for the violation of fundamental rights and Rs. 1 lakh as legal costs.

Apex Court’s judgement in this case bears testimony to the fact that state on pretext of a disruption of law and order situation cannot take such an action violating fundamental rights of it’s citizens. The Hon’ble Court observed that this kind of action on the film was a serious matter wherein intolerance was used by the state against artistic freedom. The court emphasized the importance of freedom of expression in a democracy, citing philosophers like Voltaire, Camus, and Simone de Beauvoir. It emphasized that freedom of speech and expression is not based on acceptance or rejection, but on the right to know, receive information, and be informed. The court ruled that authorities hindering the screening of a film violated both freedom of expression and the public’s right to be informed. The court declared that the State interfered with freedom of speech and expression, both in commission and omission, and held that there was a violation of the Petitioners’ rights under Article 19(1)(a) of the Constitution.

RATIONALE 

Every citizen of this free country, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. The role of print media, radio, and screens as public educators is crucial for the growth of a healthy democracy. Freedom to air one’s views is vital for any democratic institution, and any attempt to stifle this right would lead to autocracy or dictatorship. Modern communication mediums advance public interest by informing the public about events and developments, educating voters, and promoting the vibrant functioning of a democracy. In a democratic setting, dissemination of news and views for popular consumption is essential, and attempts to deny this must be avoided unless it falls within Article 19(2) of the Constitution. The state is obligated to ensure the freedoms can be exercised, using its instruments to effectuate this.

State is always 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.

DEFECTS OF LAW

  1. The court highlighted concerns about the police acting as self-appointed guardians of public morality and engaging in the suppression of dissent. This suggests a potential abuse of police powers and a failure to adhere to the rule of law.
  1. The court noted that the State’s interference with the film amounted to ‘shadow banning’ without a formal ban or clear reasons. This lack of transparency could be seen as a defect, particularly when dealing with restrictions on freedom of expression.
  1. The court emphasized the State’s failure to ensure law and order during the release of the film, pointing out that once cleared by the film board or tribunal, the government should not arbitrarily review or revise decisions based on potential public resentment. This failure raises concerns about the State’s duty to protect fundamental rights.
  1. The court expressed concern about a growing intolerance in society, which it linked to the violation of fundamental rights in this case. This societal context may indicate broader challenges related to freedom of speech and expression that need to be addressed.
  1. The court concluded that there was an unconstitutional attempt to invade the fundamental rights of the producers, actors, and audience, with the goal of silencing criticism. This suggests a violation of the principle of free speech and expression.

CONCLUSION

Indibility Creative Pvt Ltd v. Govt of West Bengal is a modern ruling that highlights the connection between constitutional guarantees and art as a manifestation of freedom. The judgement uses the constitution and natural justice principles to make an informed decision, providing monetary damages and ordering unhindered film screening. The judgement emphasizes the importance of upholding free speech for individual autonomy, minority welfare, social progress, and democracy. It serves as a prime example of ‘constitutionalism’ and serves as a precedent for future cases of media rights violations.

REFERENCES

By- Bidisha Pratihar

JIS UNIVERSITY,Agarpara