INDIBILITY CREATIVE PVT LTD & Ors. v. GOVT OF WEST BENGAL & Ors.

1.2 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 space reserved for the free exercise of speech and expression, the State cannot look askance when organized interests threaten the existence of freedom. The State is duty bound to ensure the prevalence of conditions in which of those freedoms can be exercised. The instruments of the State must be utilized to effectuate the exercise of freedom. When organized interests threaten the properties of theatre owners or the viewing audience with reprisals, it is the plain duty of the State to ensure that speech is not silenced by the fear of the mob. In the present case, 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. By the orders of this Court dated 15 March 2019 and 25 March 2019 several directions were issued to the State of West Bengal, the Principal Secretary, Home and the Director General of Police. The directions issued are maintained and confirmed. A Mandamus is issued 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 shall specifically ensure that the A B C D E F G H INDIBILITY CREATIVE PVT LTD. v. GOVT OF WEST BENGAL 685 properties of the theatre owners who exhibit the film are duly protected as are the viewers against attempts on their safety. [Paras 18, 19][712-A-H]

1.3 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. A remedy in public law for the grant of remedial compensation is required in the present case. The respondents are directed to pay to the petitioners compensation quantified at Rs 20 lakhs within a period of one month from the date of the present judgment. The petitioners shall be entitled to the costs of the proceedings quantified at Rs 1 lakh, to be paid over within one month. [Paras 20, 21][713-A-C] Romesh Thapar v. State of Madras AIR 1950 SC 124 : [1950] SCR 594 – followed. Prakash Jha Productions v. Union of India (2011) 8 SCC 372 ; Manohar Lal Sharma v. Sanjay Leela Bhansali (2018) 1 SCC 770 : [2017] SCR 111 ; Via Com Media Pvt Ltd v Union of India (2018) 1 SCC 761 ; LIC v. Manubhai Shah (1992) 3 SCC 637 : [1992] 3 SCR 595 ; Gajanan Visheshwar Birjur v. Union of India (1994) 5 SCC 550 : [1994] 1 Suppl. SCR 466 ; S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574 : [1989] 2 SCR 204 ; D.C. Saxena v. Hon’ble The Chief Justice of India (1996) 5 SCC 216 : [1996] 3 Suppl. SCR 677 ; KM Shankarappa v. Union of India (2001) 1 SCC 582 : [2000] 5 Suppl. SCR 117 ; Director General, Directorate General of Doordarshan v. Anand Patwardhan (2006) 8 SCC 433 : [2006] 5 Suppl. SCR 403 ; Prakash Jha Productions v. Union of India (2011) 8 SCC 372 ; Viacom 18 Media Pvt Ltd. v. Union of India (2018) 1 SCC 671 – relied on. A B C D E F G H 686 SUPREME COURT REPORTS [2019] 5 S.C.R. A B C D E Anand Chintamani Dighe v. State of Maharashtra 2001 Cri LJ 2203 ; F.A. Picture International v. Central Board of Film Certification, Mumbai AIR 2005 Bom 145 ; Vishesh Verma v. State of Bihar (2008) 56 (2) BLJR 1773 ; Maqbool Fida Hussain v. Rajkumar Pandey 2008 Cri LJ 4107 ; S. Tamilselvan v. State of Tamil Nadu 2016 SCC OnLine Mad 5960 – referred to. Case Law Reference (2011) 8 SCC 372 [2017] SCR 111 (2018) 1 SCC 761 [1950] SCR 594 [1992] 3 SCR 595 relied on relied on relied on followed relied on [1994] 1 Suppl. SCR 466 relied on [1989] 2 SCR 204 relied on [1996] 3 Suppl. SCR 677 relied on [2000] 5 Suppl. SCR 117 relied on [2006] 5 Suppl. SCR 403 relied on 2001 Cri LJ 2203 AIR 2005 Bom 145 referred to referred to (2008) 56 (2) BLJR 1773 referred to F 2008 Cri LJ 4107 (2011) 8 SCC 372 (2018) 1 SCC 761 referred to relied on relied on Para 7 Para 7 Para 7 Para 14 Para 14 Para 14 Para 14 Para 14 Para 14 Para 14 Para 14 Para 14 Para 14 Para 14 Para 14 Para 14 CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) Np. 306 of 2019. G (Under Article 32 of the Constitution of India) Mr. Sanjay Parikh, Sr. Adv., Ms. Rukhsana Choudhury, Narayan Krishan, Ms. Sanjana Srikumar, Ritwik Parikh, Gaurav Jain, Advs. for the Petitioners. H INDIBILITY CREATIVE PVT LTD. v. GOVT OF WEST BENGAL 687 Dr. Abishek Manu Singhvi, Sr. Adv., Suhaan Mukerji, Ms. Astha Sharma, Amit Verma, Abhishek Manchanda, Ms. Kajal Dalal, Amit Bhandari (for M/S. Plr Chambers And Co.), Advs. for the Respondents. The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

#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”. Simply put, their grievance is summarized in the extract which we reproduce from the first paragraph of the petition: “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 Articles 14,19(1)(a), 19(1)(g) and 21 of the Indian Constitution through the Kolkata Police which is under the Department of Home.”

#2. The first petitioner is a company which was established in 2017. The second and third petitioners are its directors. They have co-produced the film. The second petitioner has earlier produced Meghnadbodh Rohoshyo, a Bengali feature film 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 A B C D E F G H 688 SUPREME COURT REPORTS [2019] 5 S.C.R. A B C D E F G 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 produced Bhooter Bhobishyot (the future of ghosts), a comedy which popularized the use of ghosts as a visual art form in Bengali cinema. The film depicted the machinations of a rapacious real estate developer to convert a dilapidated old home into a mall. The film adopted the agency of ghosts as protectors of the haunted house against builders. Datta’s second film ‘Ashcharjyo Prodeep’ has dealt with the erosion of middle class values by the culture of consumerism. His third film ‘Meghnadbodh Rohoshyo’ is described as a political thriller which interweaves a theme involving Bengal of the 1970s with its modern existence.

#4. Bhobishyoter Bhoot has a UA certification for public exhibition, issued by the Central Board of Film Certification1 on 19 November 2018. 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. 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”. The second petitioner responded on 12 February 2019, stating that these “inputs” had already been addressed by the CBFC before it issued a clearance for the release of the film. The second petitioner stated that the decisions of this Court hold that it is not open to any other authority or public office to interfere in such matters as this would violate the rule of law. The second petitioner categorically informed Shri Dilip Bandopadhyay, the Joint Commissioner of Police (Intelligence), Special Branch, Kolkata that his office does not have the H 1‘CBFC’ INDIBILITY CREATIVE PVT LTD. v. GOVT OF WEST BENGAL [DR. DHANANJAYA Y CHANDRACHUD, J.] 689 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 authorities” who they said had instructed them to take the film off the screens. Several exhibitors claimed that Station House Officers from the local police station had called or visited them and informed them in no uncertain terms to cease screening the film with immediate effect, failing which they would have to face the risk of damage to their cinema halls.

#6. By the time that this Court was moved in the exercise of its original jurisdiction, the film had been taken off the screens which fall under the jurisdiction of the Kolkata police. Of forty eight exhibitors and sixty screens, only two in upcountry districts of West Bengal continued to exhibit the film. The unceremonious pulling out of the film received a considerable degree of press coverage in the print media. Among the articles were those in the daily editions of: (i) Ananda Bazar Patrika dated 17.02.2019; (ii) The Telegraph dated 17.02.2019; (iii) Pratidin dated 17.02.2019; (iv) The Times of India dated 17.02.2019; and (v) Aaj Kaal dated 17.02.2019. On 16 February 2019, the petitioners addressed a communication to the exhibitors and to Eastern India Motion Pictures Association which represents the producers, directors, exhibitors, film laboratories and studio owners. E-mails were addressed to the large exhibitors – Inox movies, PVR cinemas and Cinepolis seeking explanation for the abrupt withdrawal of the film. No response was received. The A B C D E F G H 690 SUPREME COURT REPORTS [2019] 5 S.C.R. petitioners also addressed a communication on 19 February 2019 to the Police Commissioner, Kolkata seeking a clarification on whether the police had instructed exhibitors to refrain from screening the film. The petitioners sought an assurance that their fears were misplaced. These efforts were met with silence. In sum and substance, the apprehension of the petitioners is that there has been an unlawful interference with the public exhibition of the film by an organized and concerted effort on the part of the authorities of the State including the Intelligence Unit of the police in West Bengal. The petitioners have brought focus upon the consternation expressed by doyens of theatre, literature and films in West Bengal. These protests from a cross section of personalities have been described in the petition: “Several eminent personalities have strongly condemned the removal of the Film from the halls of Kolkata. They include Soumitra Chatterjee renowned poet, theatre 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 business.

#7. The basis on which the jurisdiction has been invoked is that: A B C D E F G H INDIBILITY CREATIVE PVT LTD. v. GOVT OF WEST BENGAL [DR. DHANANJAYA Y CHANDRACHUD, J.] 691 (i) The film having received certification for public exhibition by CBFC, the obstruction caused by the state of West Bengal through its Home Department and the Kolkata police amounts to a subversion of the rule of law; (ii) These acts of obstruction to the public exhibition of the film amount to a defiance of the law declared by this Court according to which a film which has been cleared by the CBFC cannot be subject to censorship by the state nor can the state raise issues of law and order to restrain its exhibition; (iii) The attempt by the functionaries of the state to interfere with the exhibition of the film is destructive of the freedom of speech and expression; (iv) CBFC as an expert body is entrusted with the statutory power under the Cinematograph Act to determine whether a film should be certified for public viewing and constitutes the sole repository of that power; and (v) The extra constitutional method which has been adopted by the state and its agencies is destructive of the fundamental rights of the petitioners, besides being contrary to the legal principles enunciated in the decisions of this Court in Prakash Jha Productions v Union of India2, Manohar Lal Sharma v Sanjay Leela Bhansali3 and Via Com 18 Media Pvt Ltd v Union of India4, among others. The petitioners invoke the Mandamus of the Court to (i) restrain the first, second and third respondents from obstructing the unhindered exhibition of the film; (ii) abide by the certificate issued by the CBFC; (iii) provide police protection to those involved in the exhibition of the film and the audience at the theatres; and (iv) uphold the rule of law and preserve law and order for unhindered exhibition and viewing of the film.

#8. When the petition came up for hearing before this Court on 15 March 2019, notice and interim directions were issued directing the Chief Secretary and the Principal Secretary of the Department of Home in the Government of West Bengal to ensure that no obstruction or restraint