• Ms. Kanika Balhara

Indibility Creative Pvt. Ltd and others v. Government of West Bengal and others (2019 SCC OnLine SC)

CASE

Indibility Creative Pvt. Ltd and others v. Government of West Bengal and others


CITATION

2019 SCC OnLine SC 520


CORAM

Supreme Court of India

Division Bench - Hon’ble Justice Dr DY Chandrachuda and Hon’ble Justice Hemant Gupta


ALSO KNOWN AS

---


POINT OF CONSIDERATION

The scope of the fundamental right to freedom of speech and expression and carrying of lawful trade under Article 19 (1)(a), 19 (1)(g) and Article 21 of the Indian Constitution.


FACTS

  1. 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.

  2. 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.

  3. 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.

  4. 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 9830720982 on 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”.

  5. Petitioner proceeded with the release of the film on 15 February 2019. 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.

  6. 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 Signature Not Verified Articles 14,19(1)(a), 19(1)(g) and 21 of the Indian Constitution Digitally signed by through the Kolkata Police which is under the Department of Home.


ISSUES RAISED & RATIO


  • Whether the State machineries had the authority to ban the film from the public exhibition?

The West Bengal police were found to 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 maintained.


In the present case, the court was 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.


The Court issued 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 was asked to 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.

  • Whether the ban of the film by the state authorities of West Bengal was correct with respect to Article 19(1)(a), 19(1)(g) and Article 21?

The Court concluded that the freedom of speech and expression could be restricted only under the limited circumstances in Article 19(2). Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom, by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Articles 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of Government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself.


Equally, debate on public issues would be uninhibited, robust and wide open. It may well include vehement, sarcastic and sometimes unpleasant sharp criticism of the 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.



IMPORTANT CASES REFERRED

  1. Romesh Thapar v. State of Madras AIR 1950 SC 124

  2. LIC v. Manubhai Shah (1992) 3 SCC 637

  3. Visheshwar Birjur v. Union of India (1994) 5 SCC 550

  4. S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574

  5. D.C. Saxena v. Hon'ble The Chief Justice of India (1996) 5 SCC 216 27

  6. KM Shankarappa v. Union of India (2001) 1 SCC 582

  7. Director-General, Directorate General of Doordarshan v. Anand Patwardhan (2006) 8 SCC 433

  8. Anand Chintamani Dighe v. State of Maharashtra 2001 Cri LJ 2203

  9. F.A. Picture International v. Central Board of Film Certification, Mumbai AIR 2005 Bom 145

  10. Vishesh Verma v. the State of Bihar (2008) 56 (2) BLJR 1773

  11. Maqbool Fida Hussain v. Rajkumar Pandey 2008 Cri LJ 4107

  12. Prakash Jha Productions v. Union of India (2011) 8 SCC 372

  13. S. Tamilselvan v. State of Tamil Nadu 2016 SCC OnLine Mad 5960

  14. Viacom 18 Media Pvt Ltd. Versus Union of India (2018) 1 SCC 671


The author is a law graduate from the University School of Law & Legal Studies, GGS IP University, New Delhi

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