| PARTIES: | Petitioner: Indibility Creative Pvt Ltd Respondent: Govt of West Bengal |
| COURT: | Supreme court of India |
| DATE: | April 11, 2019 |
| BENCH: | Justice D Y Chandrachud and Hemant Gupta |
| LEGAL COUNSELS: | Petitioner: Mr. Sanjay Parikh Respondent: Dr Abhishek Manu Singhvi |
FACTS:
Voltaire: “I despise what you say but will defend to the death your right to say it”[2]
- On 15 February 2019, Bhobishyoter Bhoot, a Bengali feature film, was released in theatres in West Bengal, both within and outside Kolkata. The release of the film was preceded a few days earlier by a letter on 11 February 2019 from the Joint Commissioner of Police (Intelligence) in the Special Branch to the producer (petitioner 2) seeking “a private screening of the movie for a few senior officials at this end at the earliest.”
- On 12 February, the producer responded to their letter stating that the CBFC had issued clearance for the release of the film. The producer informed the Joint Commissioner of Police Intelligence, Shri Dilip Banopadhyay, that his office does not have the jurisprudence to seek advance screening prior to the release. No further communication was received from the Kolkata police.
- The film was released on 15 February 2019. On the 16 February, exhibitors in Kolkata and a few districts of West Bengal abruptly took the film off their screens with tickets being refunded.
- The director, along with cast and crew, visited the exhibitor at Inox South City to inquire why tickets were being refunded to viewers. The exhibitor cited that they were instructed to take the film off by “higher authorities” and to cease screening the film with immediate effect, failing which they would have to face the risk of damage to their cinema halls.
- The film had been taken off the screens which fall under the jurisdiction of the Kolkata police. Only two screens in districts of West Bengal continued to exhibit the film out of forty-eight exhibitors and sixty screens.
- The petitioner argued that “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.”
ISSUES:
1. Whether the state of West Bengal can justify obstructing a CBFC-certified film through its Home Department and Kolkata police without subverting the rule of law?
2. Whether state functionaries can interfere with a film’s exhibition without destroying the freedom of speech and expression?
3. Whether CBFC, as the expert body with statutory power under the Cinematograph Act to certify films for public viewing, should be the sole repository of that power?
4. Whether the state and its agencies can adopt extra-constitutional methods without destroying the fundamental rights of the petitioners?
CONTENTIONS:
Contentions raised by the petitioner:
- Mr. Sanjay Parikh, learned counsel appearing on behalf of the petitioners, submitted the chart that indicated where the films were being screened in the theatres were all situated outside Kolkata.
- On 19th March 2019, the petitioner communicated with the Police Commissioner, Kolkata, to seek clarification on whether the police had instructed the exhibitors to refrain from screening the film, but there was no response to this. There was 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 in West Bengal.
- The petition described protests from a cross-section of several eminent personalities that strongly opposed the removal of the film from the theatres in Kolkata.
- The appellants also claimed that there have been several letters addressed to the state, despite which there has been no response.
- Additionally, the state of West Bengal has informed the court that it has not used its powers either under the West Bengal Cinemas (Regulation) Act 1954 or the Cinematograph Act 1952. Despite this, all theatre owners and exhibitors stopped showing the film. One of these exhibitors, INOX Leisure Ltd., communicated to the producer on the 4th of March 2019 that they were “directed by the authorities to discontinue screening” of the film “keeping in mind the interest of the guests.”
- The legitimate grievance before the court is that the state, without using its official powers as stated by them, has resorted to extra-constitutional means to abrogate the fundamental rights of the producer, director, and viewers.
Contentions raised by the Respondent:
- Dr. Abhishek Manu Singhvi, learned senior counsel appearing on behalf of the respondent, states that the film has neither been banned by the Government of West Bengal nor has recourse been taken to the power contained in [3]Section 6 of the West Bengal Cinemas (Regulation) Act 1954 or [4]Section 13 of the Cinematograph Act 1952.
- The learned counsel defended by showing a chart filed indicating that the film was presently running in 10 theatres.
- Lastly, they argued that they had not taken recourse to their statutory powers either under state or union legislation.
RATIONALE:
The legitimate grievance before the court is that state without using its official powers as stated by them has resorted to extra constitutional means to abrogate the fundamental rights of the producer, director and viewers. When the petition came up for hearing before this court on 15th March 2019, 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 of any kind whatsoever is imposed on the film being screened in the theatres, stated in the order and the interim directions was in the following terms:
[5]“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.” 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. A series of decisions by this court emphasized the value of freedom of speech and expression in our democracy.
[6]Romesh Thapar v. State of Madras is one such constitutional case with regard to freedom of speech and expression and it was observed:
“Thus, very narrow and stringent limits have been set to permissible legislative abridgment of the right of free speech and expression and this was doubtless due to the realization that freedom of speech and of the press lay at the foundation of all democratic organizations, for, without free political discussion, no public education, so essential for the proper functioning of the processes of popular Government, is possible.”
INFERENCE:
The Indibily Creative Pvt Ltd vs Government of West Bengal is pivotal in the context of freedom of expression and speech. This case involves the balancing act between freedom of speech and expression, which is guaranteed by Article 19(1)(a) of the Indian Constitution. Under Article 19(2), the state has the authority to impose reasonable restrictions. This case highlights whether a state government can ban a film or artistic work on the grounds of public order, morality, or decency, and the criteria that must be met before imposing a ban on a film is justified. The court’s decision reaffirmed that artistic freedom must be safeguarded against undue censorship and state overreach. Overall, this case is relevant in the field of law as it addresses key constitutional principles and reinforces judicial oversight over executive actions. It’s a testament to the commitment of the judiciary to ensure that the rights of citizens in the Indian Constitution are defended.
[1] Indibily Creative Pvt. Ltd. vs Govt. Of West Bengal on 11 April, 2019 (indiankanoon.org)
[2] Supreme Court: ‘The artist is entitled to the fullest liberty and freedom to critique and criticise’ (scroll.in)
[3] Section 6 in The West Bengal Cinemas (Regulation) Act, 1954 (indiankanoon.org)
[4] Section 13 in The Cinematograph Act, 1952 (indiankanoon.org)
[5] Indibily Creative Pvt. Ltd. vs Govt. Of West Bengal on 11 April, 2019 (indiankanoon.org)
[6] Romesh Thappar vs The State Of Madras on 26 May, 1950 (indiankanoon.org)