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 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) 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 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 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 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 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.
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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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