This article is written by Easy Panda. The present article provides a detailed study of the case of Indibility Creative Pvt. Ltd. and Ors vs. Government of West Bengal (2019), along with the facts, issues raised, arguments of the parties, and the rationale behind the judgement. The article also delves into the laws involved and provides an analysis of the judgement given.
Table of Contents
Introduction
Freedom of speech is all about the right to speak, write, and share your own ideas, views, and opinions without any kind of fear. It is your right to express your opinions without any government restrictions. It is one of the most important fundamental rights and the most disputed. However, it is a disputed right because it includes balancing the protection of individual liberty with the need to maintain public order, prevent harm, and protect the rights of others. Since it has to do with how citizens defend all of their other rights and liberties, it is an essential right. If we as citizens could not freely speak about the policies and steps taken by the government, then we would have no adequate reason to take part in the democratic process or complain when we feel that the behaviour of the government is threatening our security or our freedom. Freedom of speech is one of the main pillars of our country and its absence will weaken our democracy.
The goal of democracy is to have a positive and obedient society, and to make this happen prosperously, citizens should be able to freely speak, share their views, ideas, and opinions about how they want their country to be governed and criticise the wrong. These ideas, views, and opinions should not only be confined to the election days; rather, they should be like a two-way conversation that should happen over the term of a particular government. It is important because it fights for the truth, makes its citizens more responsible, leads towards the active contribution of the citizens, etc. The case which we will be discussing in this article revolved around the concept of freedom of speech and expression and how the same was violated by the state by unofficially putting a ban on the screening of the movie.
Details of the case
Case Name- Indibility Creative Pvt. Ltd. and others vs. Government of West Bengal
Case No- Writ Petition No. 306 of 2019
Case Type- Civil Appeal
Equivalent citations- AIR 2019 SC 1918, AIROLINE 2019 SC 242
Acts involved- Constitution of India, Cinematograph Act,1952, and West Bengal Cinemas (Regulation) Act, 1954
Important Provisions- Article 14, Article 19(1)(a), Article 19(1)(g), and Article 21 of the Indian Constitution, Section 5B and Section 13 of the Cinematograph Act, 1952, and Section 6 of the West Bengal Cinemas (Regulation) Act, 1954.
Court- Supreme Court of India
Bench- Justice Hemant Gupta and Justice Dhananjaya Y Chandrachud
Date of Judgement- 11 April, 2019
Background of the case
The case of Indibility Creative Pvt. Ltd. & Ors. vs. Government of West Bengal (2019) is one such case that deals with the right of the producers to screen a particular film after accepting a convenient certification from the Central Board of Film Certification (hereinafter referred to as CBFC) counting the comparable duty of the State to protect fundamental rights of its citizens. This case is particularly concerned with an unofficial ban on the Bengali film “Bhobishyoter Bhoot”, which basically means ‘Future Ghosts’. Also, to get more insights, we should look into the concept of CBFC for better comprehension.
Central Board of Film Certification
CBFC is a legal film-certification body that works under the guidance of the Union Ministry of Information and Broadcasting. It is basically known as the “Censor Board”. Its main purpose is to administer the public screening of films in conformity with the Cinematograph Act of 1952. Films that have already been released in theatres and on television may only be publicly granted in India after they are certified and modified by the CBFC. Its main objective is to render good and healthy entertainment, recreation, and education to the public. CBFC makes the certification process more transparent and obligatory. It also educates the advisory panel members, the media, and filmmakers about the requirements of the certification and presents film trends through various meetings and workshops. CBFC uses computerisation and technological infrastructure to implement new technologies in the certification process. It also maintains clarity related to the CBFC’s actions through spontaneous disclosures, responses to RTI requests, e-governance applications, and the release of the annual reports.
Facts of Indibility Creative Pvt. Ltd and others vs. Government of West Bengal (2019)
‘Bhobishyoter Bhoot’ translated to mean ‘future ghosts’ was a Bengali film that was co-produced by three petitioners. The petitioners were, namely, a company and two directors. The company was established in 2017. The second petitioner was a renowned director who had earlier produced various films such as ‘Ascharjyo Prodeep’ and ‘Meghnadbodh Rohoshyo’, a political thriller that was selected in the Indian Panorama Section of the 48th International Film Festival of India held in Goa in 2017. This movie, ‘Bhobishyoter Bhoot’, was also shortlisted for the ARFF International Barcelona Jury Award 2018.
The movie ‘Bhobishyoter Bhoot’ was a social and political satire about ghosts who wanted to make themselves relevant in the future by rescuing the marginalised section of society. The film focuses on the pristine value of journalism, filmmaking, and politics, which society sees as compromised. The film revolved around a greedy real estate developer who wanted to convert a damaged old home into a mall. The film adopted the agency of ghosts as the protectors of the house against the builders.
The movie Bhobishyoter Bhoot received UA certification from the Central Board of Film Certification on 19 November 2018. Before the national release of the movie, the movie was set to be released in Kolkata and some other districts of West Bengal on 15 February 2019. The promotion of the film was made through electronic print and social media to create interest in the minds of the targeted audience.
Four days prior to the release of the movie in Kolkata and other districts of West Bengal, on 11 February 2019 the second petitioner received a call from the number ‘9830720982’. The caller identified himself as the officer of the State Intelligence Unit of the Kolkata Police, Dilip Bnadopadhyay. The next day, on 12 February 2019, the petitioner received a letter from the State Intelligence Unit to arrange a prior screening of the films for the senior officials of the unit. The contents of the letter stated that the contents of the movie may hurt the public sentiments of the people, which could result in public unrest. The petitioner responded that they already have obtained clearance certificates from CBFC and the State Intelligence Unit office does not have the jurisdiction to ask for the private screening because it will violate the Rule of Law.
After the film was released on 15 February 2019 the first show aired at 11 a.m., and a separate show was arranged at 5:50 p.m. for the press, cast, and crew. The problem arose the next day when, within a day of the release of the movie, the majority of the exhibitors took the film off their screens without any communication from the producers. They started refunding the ticket price without offering any reason to the producers. When the director, together with some of the cast and crew, went to visit the exhibitor at Inox City to enquire about the sudden removal of the film from the theatre, they cited that they had been asked to do the same by the higher authorities. Several other exhibitors claimed that they received such instructions from the local police station and that their refusal to do the same would lead to damage to their cinema halls.
By the time the petitioners went to court to let it exercise its original jurisdiction, the film was taken off the screens by the majority of the cinema halls. Out of the forty-eight exhibitors, only two in the outer district of West Bengal continued to exhibit the film.
The sudden removal of the film from the cinema halls received a considerable degree of unwanted attention. Many newspapers, such as Ananda Bazar Patrika, The Times of India, The Telegraph, etc produced articles in their editorial. Finally, the director and producers of the film went to the Supreme Court for the violation of their right to freedom of speech and expression and to dismiss the ban that was put on the screening of the film.
Issues raised
The following issues were in front of the Hon’ble Supreme Court of India-
- Has there been a violation of the fundamental rights of the petitioners by the state authority?
- Can the state authority interfering in the work of the CBFC be held to be a violation of the rule of law?
Laws involved in Indibility Creative Pvt. Ltd and others vs. Government of West Bengal (2019)
Constitution of India
Article 14 of Constitution of India
In general terms, Article 14 of the Indian Constitution is all about the “Right to Equality,” which is one of the fundamental rights mentioned under the Constitution. It basically states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India,” which means all the citizens of the country should be treated equally without following any kind of discrimination. The equality that an individual is getting in society is directly connected with his/her liberty. This Article of the Indian Constitution has been described in two parts- ‘Equality Before Law’ and ‘Equal Protection of Law’. The term, Equality before the law means all individuals should be treated equally irrespective of their caste, class, race, gender, etc. The state has no authority to provide any kind of special advantage to any community or people in the country. The concept of equal protection of the law was brought up in Section 1 of the 14th Amendment Act of the US Constitution. Equal protection of the law is a positive aspect of equality. It means anybody residing in the territory of India should be treated equally and should get equal protection of the law.
Article 14 of the Indian Constitution is not an absolute right and has various exceptions to it; for instance, the power that no criminal proceedings can be instituted against the President of the country and the Governor of the state clearly indicates that it is not absolute and can be restricted anytime as per the needs of society.
In the case of the State of West Bengal vs. Anwar Ali Sarkar (1952), there was an issue raised about whether the West Bengal Special Courts Act, 1950, was constitutional or not. The Supreme Court, after hearing the arguments of the parties, found no rational principle to the distinction made between a person tried by Special Courts and a person tried by an ordinary criminal court. Thereby, declaring Section 5(1) of the Act unconstitutional and violative of Article 14 of the Constitution.
Article 19(1)(a) of Constitution of India
Article 19(1)(a) of the Indian Constitution is all about the “Right to freedom of speech and expression”, which means all the citizens of the country have the right to express their thoughts freely. The right given to the citizens under this article not only enables them to speak freely in a liberal environment but also enables them to raise their voices against any wrongful act going on in society without any fear. This article is one of the most important pillars and the foundation of Indian democracy. It allows its citizens to express their thoughts, views, and ideas freely, which helps in the positive development of the nation. However, these rights also have some restrictions, so there should not be any kind of misuse of rights. The idea behind providing this right to the citizens of the country is to safeguard them from irrelevant restrictions imposed by the government. With the right to freedom of speech and expression, Article 19 also provides some other rights to its citizens, like the right to assemble, freedom to move freely, freedom to reside in any part of the country, etc.
There are certain restrictions on the right to freedom of speech and expression, as it is not an absolute right. Under Article 19(2), the restrictions are mentioned as follows:
- India’s sovereignty and integrity;
- State’s security;
- Friendly relations with foreign states;
- Defamation;
- Relation to contempt of order;
- Public order, morality;
- Provocation to an offence.
In the case of Romesh Thappar vs. State of Madras (1950), the Supreme Court held that the order made by the government upon the restrictions made by the Madras Government on the entry and dissemination of Thappar’s journal was unconstitutional and unlawful as it was uncertain and was not justified. Further, it was highlighted that restrictions on the right to freedom of speech and expression can only be done in a narrow and justified manner and only in some specific situations. Therefore, the decision of the Supreme Court in this case demonstrates a very important criterion in order to safeguard the fundamental right of freedom of speech and expression. Additionally, these rights were energised even in the context of public safety.
Article 19(1)(g) of Constitution of India
Article 19(1)(g) of the Indian Constitution states, “Freedom of profession, occupation, trade or business”. It provides a fundamental right to the citizens to exercise any profession or to opt for any occupation, trade, or business. It empowers its citizens to take part in any economic activity. The rights given to the citizens under this provision are quite vast in nature, as they encircle every source of income. It basically does not involve any kind of unlawful right to exercise any trade, business, occupation, or profession by any individual. The right to do business under this provision is only applicable to the citizens of India. According to this Article, citizens include:
- Any Company registered under the Companies Act, 2013
- Any religious group
- Any juristic person or any idol
This provision provides rights against the State or any State entity, which means that any right that is violated by the state against any individual will be dealt with under civil law or tort law, not under this provision. The rights that are provided under Article 19(1)(g) of the Indian Constitution are not absolute in nature and have some restrictions under Article 19(6) of the Indian Constitution. The restrictions are as follows:
- Interest of the general public
- Determine any professional or technical qualifications
- Monopoly of State
In the case of Vishaka & Ors vs. State of Rajasthan (1997), the Supreme Court noticed that the sexual harassment of women at workplaces is also violative of the fundamental rights under Article 19(1)(g) of the Indian Constitution. The Supreme Court issued exhaustive guidelines and required directions to forbid cases of sexual harassment of women at workplaces, both in the public and private sectors.
Article 21 of Constitution of India
Article 21 of the Indian Constitution defines the fundamental rights to life and personal liberty of any individual, including foreigners. However, the Constitution of India does not allow a foreigner the right to reside and settle in India under Article 19(1)(e). This provision prevents the intrusion upon an individual’s right to life and personal liberty by the State. The right to life is one of the most important rights. The right to life is not only confined to the act of breathing or mere animal existence. It has a much wider aspect, including the right to live with human dignity. This provision has been defined as the “heart of fundamental rights” by the Supreme Court. This right specifically says that no individual shall be deprived of life and liberty, which implies that it is a right which has been provided to the individual against the State only. Here, the State involves not only the government but also the governmental departments, local bodies, the Legislature, etc.
In the case of A.K. Gopalan vs. State of Madras (1950), it was held by the Supreme Court that personal liberty means the liberty of the physical body and therefore, it did not involve the rights mentioned under Article 19(1) of the Indian Constitution. Thus, personal liberty was considered to involve some of the rights such as the right to sleep and eat, etc. However, the right to move freely was comparably minor and was not included in the “personal” liberty of an individual.
The case of Maneka Gandhi vs. The Union of India (1978) reversed the judgement of the A.K. Gopalan case. In this case, the Supreme Court held that the right to travel and go outside the country must be covered under the right to personal liberty. The Supreme Court also stated that “personal liberty” mentioned under Article 21 of the Indian Constitution has a wider aspect and covers a bunch of rights that are related to the personal liberty of an individual. Therefore, the scope of personal liberty was expanded and it was held to include all the rights acknowledged under Article 21, counting all other rights that are related to the personal liberty of an individual. It was also mentioned by the Supreme Court that any such rights could only be barred by a procedure provided by law, which had to be fair, just, and reasonable and should not be inhuman or arbitrary in nature.
Cinematograph Act, 1952
Section 5B of Cinematograph Act, 1952
Section 5B of the Cinematograph Act, 1952, states the principles that need to be followed by the CBFC during the sanctioning of films. It entitles the CBFC to inspect and implement principles of sovereignty and integrity of the country while certifying a film. This provision also empowers the CBFC to look into matters that are against the State’s security, friendly relations with foreign states, etc.
Subclause 2 of this section lays down various guidelines that the CBFC is required to follow while sanctioning films. The guidelines are as follows:
- There should be pure and healthy entertainment provided by the film.
- The certification provided to the film must be sensible to social change.
- The CBFC must judge the film without any bias.
- The medium of the film must harmonise with the values of society.
- The film must be cinematographic in a decent manner.
- Any kind of freedom of creation or artistic expression should not be unnecessarily restrained.
In the case of S. RangaRaan vs. P. Jagjivan Ram (1989), the question raised was whether the Tamil film named “Ore Oru Gramathile” should be certified with the “U” certificate. The film allegedly derogated the exploitation of people on a caste basis. So in this case, the Supreme Court held that, seeing that there is no pronouncement in the film that threatens to overturn the government by any unlawful means and there is no such opportunity as to damage the integration of the country, the “U” certificate can be granted.
Section 13 of Cinematograph Act, 1952
Section 13 of the Cinematograph Act, 1952, mentions the powers of the central government or the local authority regarding the suspension of an exhibition of films in certain cases. The Lieutenant-Governor or Chief Commissioner, in reference to the whole or a part of a Union territory, and the District Magistrate with regard to the district that is within his jurisdiction, may suspend the screening of the film by making an order if he feels that any film that is being screened publicly has the probability to cause a violation of peace, and during the time of such suspension, the film shall be believed to be an uncertified film in the state or district.
Also, a copy of the order passed by the concerned authority mentioned above, together with a statement of the required reasons, shall be promoted by the concerned authority, making the same to the central government, and the central government may accept or reject the order. An order passed by the mentioned authorities under this section shall remain operative for a period of two months from the date thereof, but the Central Government has the power to extend the period of suspension as it thinks fit if it feels that such an order should continue in operation.
In the case of Swami Darshan Bharti Alias Devendra vs. Union of India & Ors (2018), the Uttarakhand High Court did not find any merit in the case, which was concerned with the power of the district magistrate to restrain the exhibition of the film and therefore chose not to interfere in the decision of the magistrate and the petition was dismissed.
West Bengal Cinemas (Regulation) Act, 1954
Section 6 of West Bengal Cinemas (Regulation) Act, 1954
Section 6 of the West Bengal Cinemas (Regulation) Act, 1954, provides the powers of the State Government or the District Magistrate regarding the suspension of the exhibition of films in certain cases. The State Government, in reference to the whole or a part of West Bengal, and the District Magistrate with regard to the district that is within his jurisdiction may suspend the screening of the film by making an order if he feels that any film that is being screened publicly has the probability to cause a violation of peace, and during the time of such suspension, the film shall be believed to be an uncertified film in the state or district.
The District Magistrate shall forward a copy of the order issued by the District Magistrate as specified in Section 6(1), along with a justification statement, to the Commissioner of the Division that includes the district that the District Magistrate oversees. The Commissioner may choose to accept or reject the order.
Provided that before accepting any such order passed by the authority, the Commissioner shall give to persons stopped from screening the film, a chance of showing cause against such order.
An order passed by the mentioned authorities under this Section shall remain operative for a period of two months from the date thereof, but the State Government may, in cases where an order is passed by itself, and the Commissioner has the power to extend the period of suspension as it thinks fit if it feels that such an order should continue in operation.
Arguments of the parties
Petitioner
The petitioners were being represented by learned counsel, Mr. Sanjay Parikh.
The petitioner submitted that the state of West Bengal has no jurisdiction either under the West Bengal Cinemas (Regulation) Act, 1954 or the Cinematograph Act, 1952, to put any restriction on the film. Still, a majority of the theatre owners and exhibitors had pulled the film from their screens. When producers talked to INOX Leisure Ltd. about the same, they stated that they were directed by the authorities to discontinue the screening because the guests may not find it suitable.
The counsel further submitted a chart that had a list of all the theatres where the film was being screened outside Kolkata and with that, they rested their arguments.
Respondent
The respondents were represented by learned senior counsel, Dr. Abhishek Manu Singhvi.
After the petition came up on 25th March, learned counsel informed the court that to put in effect the earlier direction of the court regarding the interim order of not putting any obstruction or restrain in the screening of the film to the Chief Secretary and the Principal Secretary of the Department of Home in the Government of West Bengal. The Additional Director General and Inspector General of Police, West Bengal, had issued directions to District Superintendents of Police, Commissioners of Police, Range Deputy Inspector General of Police, Zonal Inspector General of Police, and Additional Director General of Police by letter. The respondents also informed the court that no direction had been issued by the Government of West Bengal to ban the film and that no provision of Section 6 of the West Bengal (Regulation) Act 1954 or Section 13 of the Cinematograph Act was violated.
Further, the petitioner claimed that the film is being screened on more than 10 screens outside Kolkata. The Director and Inspector General of Police, West Bengal, filed an affidavit claiming that, with respect to the earlier order of the court, they have issued letters to all the exhibitors and theatre owners indicating that there was no ban imposed on the screening of the film.
Judgement in Indibility Creative Pvt. Ltd and others vs. Government of West Bengal (2019)
The Court, after hearing the arguments of the petitioner and respondent, issued directions to the Joint Commissioner of Police to withdraw the communication that was addressed by him to the producer of the film and the Principal Secretary of the Department of Home and Director General of Police, West Bengal, to immediately inform the theatres that no order regarding the stoppage of screening of the film has been passed. The Court also ordered to take the necessary steps for the safety of the theatre and the public who wished to watch the movie.
The Hon’ble Supreme Court issued the writ of Mandamus to prevent the state from taking any extra-constitutional means to prevent the lawful screening of the film Bhobishyot Bhoot and directed the respondent to pay a sum of Rs. 20 lakhs within a period of one month to the petitioners. The petitioners were also entitled to a sum of Rs. 1 lakh as the cost of proceeding, which was also to be paid over within a month.
Rationale behind
The Hon’ble Supreme Court, while pronouncing the judgement, relied on the fact that once the film has been certified by the authority, no other government authority can issue any formal or informal direction to prevent the film from being screened. If such orders are passed, then it will clearly be a violation of the right to freedom of speech and expression guaranteed under Article 19(1) of the Constitution of India.
The Hon’ble Court also held that in a free society, the police cannot act as a self-appointed guardian of public decency and morality. The court said that they cannot be a part of a party that is responsible for the suspension of freedom of speech and expression. The Joint Commissioner should have kept in mind the release of the film when he sent the letter to the Director of the movie. Any doubt that he might have regarding the screening of the film creating public unrest should have been laid to rest when the directors informed him that the film had received certification from the CBFC.
The court held that any order that is issued under the statutory provision of the Cinematographic Act, 1952, is under the supervisory jurisdiction of the High Court under Article 226 or under the original jurisdiction of the Supreme Court under Article 32 of the Constitution. Any excess or abuse of the statutory provision is amenable to constitutional guarantees, which protect the citizen against arbitrary state action. The court held that such arbitrary actions of the state are checked by the rule of law. The action of the state poses immense danger to free speech because the citizens are left without any information as to why such actions are performed.
The court was of the opinion that if the rights of the playwright, artist, musician, or actor are subject to societal notions of what is acceptable or not, it will lose its true meaning. The main purpose of art is to question and provoke. In an effort to find a new meaning of existence, the artists are entitled to full liberty of satire and irony and freedom to critique and criticise.
The Constitution gives every individual the power to communicate as well as to conceptualise. The court has found that our country is democratic because it recognises the absolute freedom of every citizen.
Finally, the court held that the views of a writer of a play, the work of a poet, and sketches of a cartoonist might not be acceptable to those who criticise them. Those who do not agree with their criticism have a simple choice of not watching the film, not reading those texts, etc. The Constitution does not permit the authority to crush the freedom of others to believe, think, and express. If done so, these acts will pose a great threat to fundamental human freedom and will be accompanied by the dictatorial behaviour of the state.
Precedents referred
The Hon’ble Supreme Court while pronouncing the Judgement relied upon various case laws and philosophies of various thinkers.
The court relied upon the constitutional cases of Romesh Thapar vs. State of Madras (1950), which was one of the first cases related to freedom of speech and expression. The court observed that the importance of free speech and freedom of the press is essential for a democratic society and that is the reason for setting tough limits for permissible legislation to tamper with it. Without free political discussion, the proper functioning of the government is not possible.
The Court further relied upon the case of LIC vs. Manubhai Shah (1992), where the two-judge bench of the Supreme Court decided upon two appeals concerning common questions of law involving censorship of content by state-controlled entities. The first appeal was related to an academic publication that criticises schemes of the Life Insurance Corporation, to which they replied through their magazine. The second appeal was against Doordarshan’s refusal to broadcast a documentary film that was based on the Bhopal Gas tragedy. The court set aside the decisions of both state-controlled entities, stating that they should reject content only on the basis of valid grounds. Justice A M Ahmadi held that every citizen of the country has a right to publish his or her views through any media if they are within the ambit of Article 19(2) of the Constitution. The print media, radio, and all other screens play the role of public educators, which is necessary for a healthy democracy. Any attempt to not let the work be expressed could be termed as dictatorship. Therefore, in a democratic set up circulation of news and views for popular consumption is a must and any attempt to curtail the same must not be entertained unless it falls under the exception of Article 19(2).
The court also relied upon the case of Gajanan Visheshwar Birjur vs. Union of India (1994) where the petitioner challenged the confiscation of books that contained the writings of Mao Zedong. The books were imported from China under the provisions of the Customs Act, 1962. The Court noted that no explanation was given for confiscating the books. Justice Jeevan Reddy was of the opinion that any attempt to control a democratic society would not lead to the evolution of society and would result in failure. An idea can never be killed and any attempt to suppress it can never be a successful permanent policy.
The Division Bench of Madras High Court in the case of S. Rangarajan vs. P. Jagjivan Ram (1989) revoked the U-certificate that was granted to the Tamil film Oru Gramathile, which dealt with the issue related to reservation. Later, the three-judge bench of the Supreme Court laid down the duty of the state to protect freedom of speech and expression. The court found that if the film is unobjectionable and cannot be constitutionally restricted under Article 19(2) of the Constitution, then freedom of speech and expression cannot be suspended on account of a threat of violence. It is the duty of the state to protect such freedom, as it is guaranteed by the State and the state can not plead its inability to handle the violent audience. The court also considered the film being passed by two reviewing committees and held that the members of the committee come from different walks of life with a lot of experience and represent the ins and outs of the community. They have judged the film according to the guidelines provided in the constitution. The court concluded that freedom of speech and expression is a legitimate and constitutionally protected right and it can not be denied screening on the basis of a few intolerant groups. It also held that criticism of government policies is not valid grounds for restricting the screening of the film.
The court also referred to the case of D.C. Saxena vs. Hon’ble The Chief Justice of India (1997), where Justice K. Ramaswamy was of the opinion that debate on public issues should be without any restriction and shall include sarcastic comments as well as criticism of the government and public officials. When there are no restrictions in this area, debates can happen more often, which could help a political party come to power in the most democratic way. Any restriction on freedom of speech and expression on public issues will be said to hamper the stability of the community and will result in revolution.
The court then referred to the case of KM Shankarappa vs. Union of India (2000) where Section 6(1) of the Cinematograph Act, 1952, was in question. This section gave the power to the central government to pass any order it may deem fit with respect to any film which is pending before the Board or Appellate Tribunal constituted under this Act. The central government under this Act also has the power to review or revise any decision made by the Board or the Appellate Tribunal. The two-judge bench of the Honourable Court was of the opinion that the apprehension of a violation of law and order situation is beyond the understanding of the court because once an expert body, after analysing the impact of the film, has cleared it, no excuse for a violation of law and order could be taken. It is the duty of the state government to maintain law and order in the state. Dissimilarity in views is a sign of a democratic society and just because a particular section of society has different views than that of the Tribunal and they choose to view it through unconstitutional means, it cannot be grounds for the state government to review or revise the decision of the Tribunal.
The court referred to the case of Director General, Directorate General of Doordarshan vs. Anand Patwardhan (2006), where a documentary film against communal violence was rejected from being telecasted on Doordarshan. The censor board has given a U-certificate to part 1 of the film and an A-certificate to part 2 of the film. Justice A. R. Lakshmanan from the two-judge bench of the Supreme Court held that the respondent has a right to reveal his views on the oppression of women, his imperfect understanding of manhood, and the evils of communal violence through a documentary film produced by him. Freedom of expression is a legitimate and constitutionally protected right that cannot be compromised. The court regarded the film as relevant to current society and found that it has a serious message to present. The court further found that the refusal of Doordarshan to telecast the film was because of a unanimous decision of their own committee, which was set up under the earlier direction of this Court. The Bombay High Court later held that when the decision-making process has given permission to telecast the film, Doordarshan can not avoid that decision. The Supreme Court finally held that Doordarshan is a state-owned entity and cannot deny the screening of the documentary without any valid grounds.
The Hon’ble Supreme Court also took note of the case of Anand Chintamani Dighe vs. State of Maharashtra (1990), in which the government of Maharashtra had issued a notification that every copy of the play “Mee Nathuram Godse Boltoy” and its translation in any other language would be forfeited by the government. The Bombay High Court put a stay on the notification and held that the creative work of people engaged in fine art and culture is protected by the Constitution. Our Constitution provides a healthy tradition of respect for believers as well as non-believers and conservatives as well as liberals. The process of control is against the democratic values of our country. Article 19(1) not only protects the right to literary activities but also the right of society and the community to be informed about the happenings. The right to information is an important part of Article 21 of the Constitution. All the citizens of the country must have the right to receive news and any other information. The information can be different from what is widely held as common. The diversification of viewpoints creates an ability on the part of society to exercise a right of choice.
The court also relied upon the case of F.A. Picture International vs. Central Board of Film Certification (2004), Mumbai where the Central Board of Film Certification denied giving a certificate to a film on the ground that the film had many visuals of violence and gruesome killings and there were many characters in the film who resembled real-life personalities. The division bench of the Bombay High Court quashed the order of the Central Board of Film Certification by observing that a film whose plot is based on the backdrop of communal violence cannot be shown without a portrayal of violence. The right of the director to show the film in any form is protected by the Constitution. The argument of the petitioner that the characters in the film bear a resemblance to real-life personalities is not valid, as the Constitution gives the filmmaker the right to depict any real-life character. The Hon’ble Court finally held that critical appraisal is one of the underlying principles of democracy and this film will act as a means to contribute to that appraisal.
The Court also referred to the case of Vishesh Sharma vs. State of Bihar (2008), where a single judge bench of the Patna High Court quashed a criminal proceeding instituted against the persons who were involved in producing a television serial that had allegations that the serial had characters who resembled the family of the former Chief Minister of Bihar. It was argued that the serial was made to defame the family of the former Chief Minister. Justice Navaniti Prasad Singh held that creative art is free to depict the picture of the society, the political system, or the person in politics in the manner he wants. They are free to make political satire until they are doing that in the course of public morality and decency. Any creation of a creative artist can not be questioned on the grounds that it affects the super-sensitive people of society who are not used to hearing criticism.
The court also relied upon the case of Maqbool Fida Hussain vs. Rajkumar Pandey (2008), where the petitioner was charged with hurting religious sentiments and obscenity for his painting which showed India as a nude woman with her hair flowing in the form of the Himalayas. Justice Sanjay Kishan Kaul opined that pluralism, along with the right to dissent, is the sole source of democracy. The dissenter should be free of the thought that he might be harmed or held captive for his dissent. The real meaning of freedom lies only when the person is free of any social sanction after he has exercised his right to freedom.
In another case, Prakash Jha Productions vs. Union of India (2011), the Uttar Pradesh government banned the screening of the film ‘Aarakshan’ which dealt with the issue of reservation, even after the film was duly certified by the Censor Board constituted under the Cinematograph Act. The argument presented by the UP government was that it would disrupt peace in society. The Court in this case relied upon the ruling in K.M. Shankarappa vs. Union of India and held that it is the duty of the state to maintain law and order in the society. Once the film is cleared by the board for screening, the government can not prohibit the screening of the film.
In another case, S. Tamilselvan vs. State of Tamil Nadu (2015), it was alleged that a Tamil novel had mentioned conventions that were nonexistent and defamatory to the residents of a certain area. A writ petition was filed before the Madras High Court alleging that the state officials were under the influence of extra-judicial elements and had forced the author to withdraw the unsold copies of the book and ask for an apology. Justice Sanjay Kishan Kaul, on behalf of the Division Bench of the Madras High Court, referred to the case of Maqbool Fida Hussain vs. Rajkumar Pandey, where they held that it is the duty of the state government to ensure that law and order are maintained in society. The state and the police authorities may not be the best to judge such literary and cultural issues and therefore it should be left to the discretion of the court to decide.
Another case to which this Court referred was Viacom 18 Media Pvt. Ltd. vs. Union of India (2018) where the three-judge bench of this Court granted a stay on the notification and order that were issued by some states banning the screening of the film ‘Padmavat’ even after the film was granted a certificate by the Central Board of Film Certification. The then Chief Justice Deepak Mishra held that once the film is granted a certificate by the CBFC, the non-screening of the film will amount to an infringement of the fundamental right of free speech and expression of the petitioner. They again stress the effort of the state government to maintain law and order in society whenever the film is screened.
Critical analysis
This judgement of the Supreme Court will act as a precedent for the lower court and other High Courts for matters which are similar to this case and involve a substantive question of freedom of speech and expression. The judgement dealt with the rights of the producers of the film to exhibit their film after receiving due authorisation from the Central Board of Film Certification.
The Supreme Court, through this judgement, recognised the role of the CBFC as a central body for film certification and possession of the sole authority for certification of any film. The central government or state government does not have the power to interfere in the work of the CBFC until, in certain cases, the revisional power of the government is exercised. Apart from this, the executive has the power to suspend the exhibition of any film if it is likely to cause damage to the peace of society. But in the present case, no such act was recorded, which could have been said to disrupt the peace. Also, the Government of West Bengal has informed the court that they haven’t exercised any such power. Therefore, it was finally held that the unconstitutional measures taken by the government to prohibit the screening of the film resulted in the violation of the freedom of speech and expression of the petitioners.
The Honourable Supreme Court further identified the need to clarify that all things can be included in the ambit of the right to freedom of speech and expression. The Supreme Court identified the importance of free speech in a democracy and the repercussions of curbing the right. The Supreme Court identified this right as an indivisible aspect of every individual, which will further support the progress of the nation. The Supreme Court also laid emphasis on the fact that unless any act does not fall under the ambit of restriction as mentioned in Article 19(2) of the Indian Constitution, the state should not hamper the freedom of speech and expression. The Court also took note of the recent social intolerance present in our society, which results in the rights of artists, writers, and directors being hampered unconstitutionally.
The judgement of the court further dealt with the role of art in human society and its contribution to the flourishing of society. The court finally concluded that there was an unconstitutional attempt to violate the right of freedom of speech and expression of the petitioner by the state and therefore awarded damages to be paid to them by the state authorities.
Judgements in which this case was relied on
The case of Indibillity Creative Pvt Ltd vs. Government of West Bengal (2019) was referred to by the Honourable Judges of the Supreme Court in the case of Ranjit Singh Phoola vs. Union of India and Ors. (2022) where a writ petition was filed in the Supreme Court for cancellation of a certificate that was granted by the CBFC to the Punjabi Film ‘Masand’, which was set to release on 10th November 2022. The main concern of the petitioner was that it showed the Nihang community of the Sikh religion in a violent manner, which hurt the sentiment of the community. The petitioner wanted to put a ban on the screening of the movie. However, the Punjab and Haryana High Court referred to various judgements, including Indibillity Creative Pvt Ltd vs. State of West Bengal and held that CBFC has duly given a certificate to the film by analysing all the various aspects of the film and thus no ban should be imposed.
Conclusion
Indibility Creative Pvt Ltd vs. Government of West Bengal (2019) is a progressive judgement that proposes the modern aspect of liberalism. It flashes the correlation between two different yet close areas of human civilisation, i.e., constitutional guarantees and art as an incarnation of freedom. This judgement also engages the positive law of the land, i.e., it uses the Constitution and the principles of natural justice to make a reasonable decision. It provides for the damages in monetary terms and by ordering the uncontrolled screening of the films. The judgement highlights the importance of adhering to freedom of speech for individual choice, the welfare of minorities, social progress, and democracy. It works as a primary instance of “constitutionalism” and also works as an initial for future cases regarding violations of media rights.
Frequently Asked Questions (FAQs)
What are the types of CBFC certification?
There are four types of certification issued by the CBFC. They are, namely – ‘U’ for unrestricted public exhibition, ‘A’ for only adults, ‘UA’ for films that require parental guidance for children under 12 years of age, and ‘S’ for a special group of audience members.
How many films have received certification from CBFC?
There are a total of 1,18,705 films, which include both Indian and foreign films that have received certification from CBFC.
U- till now 75,501 movies have received U certificates from CBFC. There is no information about the first film to get the U certificate.
A- 3417 films have been granted an A certificate from the CBFC. Hanste Aansoo of 1950 was the first movie to receive this certification.
UA- till now, 39,789 movies have received UA certificates from CBFC.
S- Only 1 film is given an S certificate by CBFC.
Is freedom of speech a democratic right?
Yes, the right to freedom of speech is a democratic right that allows citizens to freely express their views, ideas, and opinions without any kind of government restrictions. Through the First Amendment of the United States, the freedom of speech concept was brought into the picture, like all modern republics, placing restrictions on this freedom.
References
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
