TMI Blog2019 (4) TMI 2113X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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. 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 lib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 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. 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 maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 3. 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 produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial 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. 5. 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 authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and veteran film actor in Pather Panchali and several other Bengali films, winner of the Dadasaheb Phalke award, Aparna Sen, actor, screenwriter, filmmaker and director of well known films including 36 Chowringee Lane, Budhadeb Dasgupta, renowned poet and contemporary Bengali film-maker, Director, Bibhash Chakraborty well known Bengali theatre personality. Several actors of contemporary Bengali cinema have staged protests and demonstrations in Kolkata and they include Sabhyasachi Chakraborty (of Feluda fame), Koushik Sen, Soheg Sen, Chandan Sen, Deboleena Datta, Chandrayee Ghosh, Barun Chanda and several others including the director of the film, Anik Datta, the co-script writer Utsav Mukherji. There have been several meetings and talks to decry the obstruction posed to the freedom of speech and expression of cinema artists, directors and producers. There have been open letters addressed to the State despite which there has been no response. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. When the petition came up on 25 March 2019, Dr Abhishek Manu Singhvi, learned senior Counsel appearing on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the communication that was addressed by him to the producer of the film on 11 February 2019; and (ii) Principal Secretary, Department of Home and Director General of Police, West Bengal to immediately issue communications to all the theatres where the film was being originally screened intimating them that there is no ban on the screening of the film and that the state shall in compliance with the order passed by this Court on 15 March 2019, take necessary steps for protecting the properties of the theatre owners and the safety of the members of the public who wish to view the film. This Court called for affidavits of compliance from the Principal Secretary, Department of Home, Government of West Bengal and the Director General of Police noting that we will hold them accountable to ensure compliance with the above direction . 10. In pursuance of the directions which were issued on 25 March 2019, the Director and Inspector General of Police, State of West Bengal has filed an affidavit stating that he had issued letters to all exhibitors and theatre owners where the film was being originally screened on 27 March 2019 indicating that there neither was nor is any ban on the scree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peech 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 Id.. The reasons to defend free speech are both moral and instrumental. Moral arguments for the defense of free speech range from a conception of what it is to be a person, to the idea that curtailments of speech and expression are an infringement of an individual's autonomy or dignity--either as a speaker or a listener, or both. Supra note 6, at Page 59. These arguments are based on the intrinsic value of free speech for human beings rather than the measurable consequences that might flow from preserving it. Id. The instrumental argument on the other hand is ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment without extensive freedom of speech would lack legitimacy and should therefore not be called ' democratic : Free speech is a condition of legitimate government. Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if government has prevented anyone from expressing his convictions about what those laws and policies should be. Ronald Dworkin, The Right to Ridicule , New York Review of Books, 23 March 2006. Dworkin conceptualizes democracy not just as a formalised structure for decision-making but as a constitutional concept that allows the participation of all individuals, including minorities with potentially unconventional views. Eric Barendt, Freedom of Speech, (2nd Edition, OUR 2005) at pgs 18-19 as cited in Aoife O'Reilly, In Defence of Offence: Freedom of Expression, Offensive Speech, and the Approach of the European Court of Human Rights, 19 Trinity C.L. Rev. 234 (2016). This notion of democracy is inconsistent with the idea of the state which restricts access to public debate, as such restrictions would fetter the understanding of democracy as a continuous process that can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be, even temporarily, suspended in order to make way for a new culture... There is no culture without legacy... Whatever the works of the future may be, they will bear the same secret, made up of courage and freedom, nourished by the daring of thousands of artists of all times and all nations. Albert Camus and Justin O'Brien, Resistance, Rebellion, and Death, Random House, New York (1960). Simone De Beauvoir tells us how every artist, situated in the present uses her connect with reality to transcend social existence: In order for the artist to have a world to express he must first be situated in this world, oppressed or oppressing, resigned or rebellious, a man among men. But at the heart of his existence he finds the exigence which is common to all men; he must first will freedom within himself and universally; he must try to conquer it: in the light of this project situations are graded and reasons for acting are made manifest. Simone De Beauvoir, The Ethics of Ambiguity, Bernard Frechtman (Translator). 14. A catena of decisions of this Court have emphasised the value of freedom of speech and expression in our democracy. In one of the first constitutional cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution... In Gajanan Visheshwar Birjur v. Union of India, (1994) 5 SCC 550 the Petitioner challenged the confiscation of books containing the writings of Mao Zedong which were imported from China under the provisions of the Customs Act. The Court noted that the show-cause notices as well as the final orders did not contain any specifications to indicate as to why the confiscation was warranted under the notification. Speaking for a two-judge Bench of this Court, Justice Jeevan Reddy opined: 10....we must express our unhappiness with attempts at thought control in a democratic society like ours. Human history is witness to the fact that all evolution and all progress is because of power of thought and that every attempt at thought control is doomed to failure. An idea can never be killed. Suppression can never be a successful permanent policy. Any surface serenity it creates is a false one. It will erupt one day. Our Constitution permits a free trade, if we can use the expression, in ideas and ideologies. It guarantees freedom of thought and expression -- the only limitation being a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself. In D.C. Saxena v. Hon'ble The Chief Justice of India (1996) 5 SCC 216, Justice K Ramaswamy, who delivered the opinion of the Court, opined thus: 30. Equally, debate on public issues would be uninhibited, robust and wide open. It may well include vehement, sarcastic and sometimes unpleasant sharp criticism of government and public officials. Absence of restraint in this area encourages a well-informed and politically sophisticated electoral debate to conform the Government in tune with the constitutional mandates to return a political party to power. Prohibition of freedom of speech and expression on public issues prevents and stifles the debate on social, political and economic questions which in the long term endangers the stability of the community and maximises the source and breeds for more likely revolution. In KM Shankarappa v. Union of India, (2001) 1 SCC 582 the vires of Section 6(1) of the Cinematograph Act, 1952 was challenged. The Section enabled the Central Government to pass any order it may deem fit in relation to any film ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... telecast the film in the current case in the face of unanimous recommendations by their own committees set up in accordance with the direction of this Court is an issue to be addressed apart. The High Court of Bombay has not substituted its discretion for that of the authorities. On the contrary, the High Court has ruled that when the decision-making process has itself resulted in the recommendations to telecast, it is not open to Doordarshan to find other means just to circumvent this recommendation.... In Anand Chintamani Dighe v. State of Maharashtra 2001 Cri LJ 2203, the Government of Maharashtra had issued a notification declaring that every copy of the play titled Mee Nathuram Godse Boltoy and its translations in Gujarati or any other language would stand forfeited to the Government. In an order of the Bombay High Court granting a stay on the notification, one of us (DY. Chandrachud, J.) opined thus: 6.. the strength of our society and the stability of the constitutional structure lies in its ability to accommodate a diversity of view points and cultures. The maturity of a society committed to a democratic way of life lies as much as in its respect for those who conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tools of trade. Satire, humor and the ability to shock each one out of the mundane levels of existence is what embellishes art forms. The Constitution protects the right of the artist to portray social reality in all its forms. Some of that portrayal may take the form of questioning values and mores that are prevalent in society. The power of literature lies in the ability of the writer to criticise commonly held beliefs and ordinary human foibles. Equally, a writer, producer and director of a film have the discretion to depict the horrors of social reality.... The Court further noted: The certifying authority and the Tribunal were palpably in error in rejecting the film on the ground that it had characters which bear a resemblance to real life personalities. The constitutional protection Under Article 19(1)(a) that a filmmaker enjoys is not conditioned on the premise that he must depict something which is not true to life. The choice is entirely his. Those who hold important positions must have shoulders which are broad enough to accept with grace a critique of themselves. Critical appraisal is the cornerstone of democracy and the power of the film as a medium of expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 suspending exhibition of the film on the ground that it was likely to cause a breach of peace. Following the ruling in K.M. Shankarappa v. Union of India (supra), a two-judge Bench of this Court held: 23. It is for the State to maintain law and order situation in the State and, therefore, the State shall maintain it effectively and potentially. Once the Board has cleared the film for public viewing, screening of the same cannot be prohibited in the manner as sought to be done by the State in the present case. As held in K.M. Shankarappa (Supra) it is the responsibility of the State Government to maintain law and order. In S. Tamilselvan v. State of Tamil Nadu, 2016 SCC OnLine Mad 5960 a Tamil novel was alleged to narrate conventions that were 'non-existent and defamatory' to the residents of a certain area. A Writ Petition was filed before the Madras High Court, alleging that state officials had succumbed to the demands of extra-judicial elements and forced the author to withdraw unsold copies of the book and tender an unconditional apology. Speaking for a Division Bench of the Madras High Court, Justice Sanjay Kishan Kaul (as he then was) referred to the decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied the distinction and the tension between citizen and population that is a characteristic feature of contemporary democracy...though the discourse of democracy is predicated on the figure of the citizen and its corollaries of autonomy, equal rights, and self-representation, the modernizing agendas of post-colonial nation-states like India presume populations which are the objects of government policy rather than as citizens... Ganti T. 2009,' The Limits of Decency and the Decency of Limits', as cited in Gautam Bhatia, Offend, Shock or Disturb: Free Speech under the Indian Constitution (Oxford University Press 2016), at Page 180 The approach of the authorities in the present case treats citizens as subjects denying them the capacity for autonomy and self-determination, by vesting in the government wide authority to decide the forms of expression that these subjects can access and be trusted with having exposure to. Gautam Bhatia, Offend, Shock or Disturb: Free Speech under the Indian Constitution (Oxford University Press 2016), at Page 183 16. The police are not in a free society the self-appointed guardians of public morality. The uniformed authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict under the jurisdiction of the District Magistrate and such Commissioner may either confirm or discharge the order: Provided that before confirming any such order, such Commissioner shall give to persons prevented from exhibiting the film, an opportunity of showing cause against such order. (3) An order made under this Section shall remain in force for a period of two months from the date thereof, but the State Government may, in the case of an order made by itself, and the Commissioner may, in the case of an order made by a District Magistrate and confirmed by him, if it or he is of opinion that the order should continue in force, direct that the period of suspension or prohibition shall be extended by such further period or periods as it or he thinks fit. of the West Bengal Cinemas (Regulation) Act 1954) and the Central Act (Section 13 Section 13: Power of Central Government or local authority to suspend exhibition of films in certain cases. 13. (1) The Lieutenant-Governor or, as the case may be, the Chief Commissioner, in respect of the [whole or any part of a Union territory] and the district magistrate in respect of the district within his jurisdiction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding 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 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 20. 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. We are clearly of the view that a remedy in public law for the grant of 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. 21. 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. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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