CASE COMMENT:  INDIBILITY CREATIVE PVT. LTD. & ORS. V. GOVT. OF WEST BENGAL

Citation: 2019 SCC OnLine SC 520

Court: Supreme Court of India 

Case No.WRIT PETITION (CIVIL) No. 306/2019

Bench: Justice Hemant Gupta and Dr D.Y. Chandrachud

Date of judgement: 11 April 2019

• The petitioners in this case included a production company and the producers-cum-directors of a Bengali film, ‘Bhobishyoter Bhoot,’ which is a political satire about ghosts seeking meaning by rescuing the oppressed and marginalised.  
• In addition to being chosen for the ARFF International-Barcelona Jury Award, the film received a UA certificate for public screening from the CBFC on November 19, 2018. The release date was set for February 15, 2019. 
• However, four days before its release, i.e., on 11 February 2019, the director and producer of the film (Petitioner 2) received a call from the number ‘9830720982’. The person who called introduced himself as Mr. Dilip Bandopadhyay, an officer of the Kolkata Police’s State Intelligence Unit, and requested an advance screening of the film, specifically for West Bengal’s top government officials. On top of that, the petitioner was also informed by the police that they had intelligence reports which suggested that the film’s release may cause ‘political law and order issues.’
• In response, the Petitioner stated that the State Intelligence Unit lacked the jurisdiction or authority to request a private movie screening because they had already received clearance certificates from the CBFC.
• As planned, the movie came out on February 15. However, the picture was abruptly taken off from an excessively high number of screens on February 16, the day after its release. The exhibitors claimed that they were merely following orders from ‘higher authorities.’ This incident attracted the attention of many leading national newspapers, including The Times of India and The Telegraph.
• Consequently, the petitioners claimed that their freedom of speech and expression had been violated and brought a writ action before the Supreme Court. Upon filing the writ, the movie had already been pulled out of a large number of theatres. Only 2 out of 48 exhibitors continued to exhibit the film.

• 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?
• Did the State resort to unconstitutional means to stop the screening of the film, which in turn deprived the petitioners of their fundamental rights?

Advocate Sanjay Parikh appeared for the appellant/petitioners. The main contentions were:

• Lack of jurisdiction: Neither the West Bengal Cinemas (Regulation) Act of 1954 nor the Cinematograph Act of 1952 gives the State of West Bengal the authority to place any limitations on the film’s screening.
• Violation of fundamental rights: The film’s ‘shadow ban’ constituted a violation of the petitioner’s rights to free speech and expression.
• Harm principle: The Counsel brought attention to the ‘harm principle’ and asserted that freedom can be controlled only to prevent harm to others.

           Senior Advocate Dr. Abhishek Manu Singhvi appeared for the respondents. The main contentions were:

• No directions were issued by the government: The respondents informed the court that the West Bengal government had not provided any orders to enforce a ‘shadow/blanket ban’ on the film. 
• No violation of any law: It was argued that neither Section 6 of the West Bengal Cinemas (Regulation) Act 1954 nor Section 13 of the Cinematograph Act 1952 has been violated.

• The Supreme Court directed the Joint Commissioner of Police to remove his earlier communication with the film’s producer. 
• The court further directed the Principal Secretary of the Department of Home and the Director General of Police of West Bengal to inform all movie theatres that there was no direction issued to stop the screening of the film. Concerned authorities were also asked to take all necessary precautions to ensure the safety of the theatre and the audience that came to see the film. It was also held that the police should act as a custodian of law but not as a self-appointed guardian of morality or social order. 
• The court emphasised that once a film has received certification from a competent authority, no governmental or non-governmental entity has the authority to direct a film to be prevented from screening. Such directives would infringe upon the Constitution of India, specifically Article 19(1)(a).
• The court argued that limiting the rights of playwrights, artists, musicians, and actors to societal norms can lead to a loss of artistic purpose. As a result, all artists must be entitled to full liberty, artistic independence, and the ability to criticise. 
• The final judgement was ultimately based on the opinion that the views of an artist might not be acceptable to those who criticise them. Furthermore, the Constitution prohibits the authorities from crushing the freedom of others, as doing so will be a violation of fundamental rights.

• Overreach of police power: Even though ‘Bhobishyoter Bhoot’ had previously been certified for public screening by the Central Board of Film Certification, the police went beyond their authority when they demanded a private screening for the senior government officials. This is a clear example of blatant abuse of authority.
• Vagueness in certain provisions: There is no exact definition of ‘public order’ in India. In the given case, the government exploited the subjective nature of the concept in order to impose an unconstitutional ban on the release of the film and to try to give justification for it. If there existed specific grounds or a certain legal definition of ‘public order’, it would not have been plausible for the state government to circumvent the reasonable restrictions to freedom of speech and expression, which have been mentioned in Article 19(2) of the Constitution. 
• Arbitrary actions of the state government: The arbitrary interference of the government of West Bengal with the release of the movie without any formal reason lacked any sort of transparency and amounted to a restriction of the freedom of expression of the filmmakers.
• Accountability gap: Unofficial directives from the state police in the form of letters and phone calls, as well as the refusal of authorities to cite clear and appropriate reasons for pulling down the movie from theatres, hint at possible denial of accountability for their actions. 
• Lack of remedy for informal censorship: Apart from restricting the freedom of expression for the filmmakers, the arbitrary actions of the state government also amount to stifling creativity and artistic freedom by putting undue pressure through its unofficial channels. Unfortunately, there are no proper provisions or adequate mechanisms to prevent the occurrence of such situations.

Every citizen has the right to express their opinions freely and without any fear of their voice being stifled by forceful means. One of the most fundamental parts of Indian democracy is Article 19(1)(a) of the Constitution. It includes people from various social groups and backgrounds and gives them the freedom to express their opinions in a free and open setting as well as to protest wrongdoing in the community. The case of Indibility Creative Pvt. Ltd. & Ors. v. Govt. of West Bengal serves as a stark reminder of the need to allow artists to express themselves freely and effectively. Movies serve as a visual medium of communicating stories, concepts, and ideas to the audience. They can also raise social awareness by educating and influencing the audience about social issues. Imposing indirect or blanket bans on the release of movies through forceful means and indirect channels of the state government ends up causing more harm than any good. 

Some of the key inferences that can be made from the Supreme Court judgement in this case include: 

1. All individuals and authorities, including the State, must obey the rule of law.
2. Regarding film certification, the Central Board of Film Certification and other regulatory bodies’ decisions are final and binding, and neither the federal government nor any state government may overrule or interfere with them. Only when a film’s release is likely to jeopardise social harmony does the administration have the authority to halt its screening.
3. The State must play a proactive role in upholding freedom of speech and ensuring that all citizens enjoy their fundamental rights to the fullest.
4. The award of ₹ 20 lakh as damages to the producers sets up a precedent that extra-constitutional actions would incur adequate compensation. 
5. Extra-legal censorships are unconstitutional, and any means to oppress dissenting views or quash artistic freedom shall be met with judicial scrutiny. There is also a need for proper provisions as well as mechanisms in order to impose legal sanctions for the defaulters, as well as a remedy for victims of the same.

This judgement sets up a positive precedent for all the High Courts and other subordinate courts for all cases which may deal with artistic freedom or freedom of speech and expression. It once again emphasises the judiciary’s role as a guardian of constitutional rights and upholding the value of ‘constitutionalism’ and the rule of law.

Submitted by: –

ANABIL H KASHYAP

Manipal University Jaipur

Dehmi Kalan, Off Jaipur-Ajmer Expressway

Jaipur, Rajasthan-303007