Very recently the Supreme Court had an occasion to take a critical look at the action of the West Bengal Govt. to ban the film, “Bhobishyoter Bhoot, while delivering the judgment on April 11, 2019, of the case – Indibility Creative PVt. Ltd. v. Govt of West Bengal & Others.
While doing so, speaking through its two-judge bench consisting of Justice Dr Dhananjaya Y. Chandrachud and Justice Hemant Gupta, the Court has voiced its feelings in very clear terms, stating that as a consequence of the pulling off the film from the theatres, where it was screened on February 16, 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.
According to the Court,this was 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 freedom of the petitioners.
The Court has said that it is clearly of the view that a remedy in public law for the grant of remedial compensation is required in the present case.
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.”
The police are not in a free society the self-appointed 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. Sub-section (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 Govt., or as the case may be, the Central Govt. ( 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 Court under Article 226 or, as the case maybe, the original jurisdiction of the Supreme 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 from the 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 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 posed 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 does not accept rights of others in society to freely espouse their views and to portray them in print, in the theatre or in the celluloid media.
Organized 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 the 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. The artist, in an effort to do so, is entitled to the fullest liberty and freedom to critique and criticize.
Motivated by a mission to support meaningful Bengali cinema, the petitioners produced this film. Their grievance which forced them to move the Court under Article 32 of the Constitution has been that “the State of West Bengal is misusing police power and acting as a ‘super-censor’ atop the CBFC and is violating the petitioners’ fundamental rights through the Kolkata Police which is under its Department of Home”.
Convinced about the genuineness of the petitioners’ Case, the Supreme Court ordered and directed the respondent- State Government to pay to the petitioners compensation, which the Court quantified at Rs 20 lakhs within a period of one month from the date of this judgment. The Court has also awarded costs of Rs. one lakh.