In a major and significant development with far reaching consequences, the Supreme Court on April 11, 2019 has in a latest, landmark and extremely laudable judgment titled Indibility Creative Pvt Ltd & Ors v. Got of West Bengal & Ors in Writ Petition (Civil) No. 306 of 2019 has minced no words to express its extreme concern over growing intolerance to dissent and curbing of artistic freedom. It also sought to make it unequivocally clear that the state is constitutionally bound to protect people’s freedom. Not stopping here, it also came down heavily on the unofficial ban imposed by West Bengal Government and further for also using police pressure to coerce exhibitors to stop its screening!
What’s more, the Apex Court also slapped a fine of Rs 20 lakh on the West Bengal government for blocking release of satirical film ‘Bhobishyoter Bhoot’ and for using coercive means to stop its release. It also made it clear that, “Free speech cannot be gagged by fear of mob.” Very rightly so!
On the face of it, the Supreme Court’s strong displeasure which it has expressed in this commendable and courageous judgment over the growing intolerance to dissent and unjustified curbs on artistic freedom is entirely understandable! This noteworthy judgment authored by Justice DY Chandrachud for himself and Justice Hemant Gupta and running into 30 pages is certainly not just worth reading but also worth inspiring and most importantly worth implementing also! While despising the action of West Bengal government whose “higher authorities” had asked theatre owners not to screen the film, the Bench held in no uncertain terms that it was an “unconstitutional attempt to invade the fundamental rights of the producers, the actors and the audience.”
First and foremost, it is pointed out in para 1 that, “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”.”
To put things in perspective, it is then pointed out in para 2 that, “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 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.”
Simply put, while dwelling on the background, it is then illustrated in para 3 that, “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 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 mail. The film adopted the agency of ghosts as protectors of the haunted house against builders.”
To recapitulate, it is then pointed out in para 4 that, “Bhobishyoter Bhoot has a UA certification for public exhibition, issued by the Central Board of Film Certification (CBFC) 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 9830720982on 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 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.”
Furthermore, it is then elucidated in para 5 that, “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.”
By the way, para 6 then goes on to add that, “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, 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 – Inex movies, PR Cinemas and Cinepolis seeking explanation for the abrupt withdrawal of the film. No response was received. The 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 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.”
For the sake of brevity, what all the doyens wrote in their petition while strongly condemning the removal of film from the halls in Kolkata is not being mentioned here. Suffice it to say that they all reiterated their full support for the film to be screened in all halls. It is then further held in this same para 6 that, “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.”
As it turned out, it is then pointed out in para 7 that, “The basis on which the jurisdiction has been invoked is that:
(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 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 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 India (2011) 8 SCC 372, Manohar Lal Sharma v Sanjay Leela Bhansali (2018) 1 SCC 770 and Via Com 18 Media Pt Ltd v Union of India (2018) 1 SCC 781, 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.
It would be pertinent to mention here that it is then mentioned in para 8 that, “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 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.”
To put it succinctly, it is then observed in para 12 that, “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 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.”
Briefly stated, it is then made amply clear in para 13 that, “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.[Nigel Warburton, Free Speech: A Very Short Introduction (Oxford University Press 2009) at page 27]. This principle is at the heart of democracy, a basic human right, and its protection is a mark of a civilized and tolerant society.”
Equally importantly, it is then made abundantly clear in para 16 that, “The police are not in a free society the self-appointed 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.”
Of course, it is also made crystal clear in this same para 16 that, “An excess or abuse of statutory power is amenable to constitutional guarantees which protect the citizen against arbitrary state action. The danger 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.”
To be sure, it is then further stated in this same para 16 about recent incidents that, “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 what is not acceptable, the right itself and its guarantee under the Constitution would be rendered illusory.”
Needless to say, it is then also made clear in this same para 16 that, “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. We find in the foibles of others an image of our own lives. Our experiences provide meaning to our existence. 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 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.”
To put things in perspective, para 17 then enunciates that, “As this case indicates, 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 has informed the Court that it had not taken recourse to its statutory powers either under state or union legislation. If that be so, there has to be some explanation forthcoming before the Court why the film was simultaneously removed from the theatres, at one stroke, shortly after release. 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’. We have no manner of doubt that this was a clear abuse of public power. The police are entrusted with enforcing law. In the present case, the West Bengal police have overreached their statutory powers and have become instruments in a concerted attempt to silence speech, suborn views critical of prevailing cultures and threaten law abiding citizens into submission.”
It cannot be lost on us that it is then explicitly and elegantly held in para 18 that, “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. Unless we were to read a positive obligation on the state to create and maintain conditions in which the freedoms guaranteed by the Constitution can be exercised, there is a real danger that art and literature would become victims of intolerance. In the present case, we are of the view that 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.”
Going forward, it is then held in para 19 that, “This leads us to the issue of relief. 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. We maintain and confirm the directions which have been issued. We issue a Mandamus 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 properties of the theatre owners who exhibit the film are duly protected as are the viewers against attempts on their safety.”
More importantly, it is then held in para 20 that, “As a consequence of the pulling off 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 freedom of the petitioners. We are clearly of the view that a remedy in public law for the grant o remedial compensation is required in the present case. We order and direct the respondents to pay to the petitioners compensation which we quantify at Rs 20 lakhs within a period of one month from the date of the present judgment.”
Lastly, it is then held in para 21 that, “The Writ Petition is allowed in the above terms. The petitioners shall be entitled to the costs of the proceedings quantified at Rs 1 lakh to be paid over within one month.”
Unquestionably, this landmark, latest and extremely laudable judgment authored by Justice Dr DY Chandrachud for himself and Justice Hemant Gupta has sent a loud and clear message that there will be zero tolerance to growing intolerance and if the perpetrator is State itself as here it is the State of West Bengal then it has to cough up for its brazen acts! It has certainly not left even an iota of doubt that the State cannot ride roughshod over any citizen’s basic rights and trample upon artistic freedom by blocking unreasonably the release of any film on its own whims and fancies as and when it likes! It has also made it amply clear that police also cannot act as self appointed guardian of public morality! No one can have the unfettered right to silence speech on one pretext or the other! Absolutely right!