Case: INDIBILY CREATIVE PVT. LTD Vs. GOVT. OF WEST BENGAL

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 48 th 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 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. Dattas 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 Certification 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 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 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(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 India (2011) 8 SCC 372 , Manohar Lal Sharma v Sanjay Leela Bhansali (2018) 1 SCC 770  and Via Com 18 Media Pvt Ltd v Union of India(2018) 1 SCC 761 , 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 film8. 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 of any kind whatsoever is imposed on the film being screened in the theatres. The interim direction was in the following terms:specifically direct the Chief Secretary and the Principal Secretary, Department of Home, Government of West Bengal to 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 screenedThe 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 India9. When the petition came up on 25 March 2019, Dr Abhishek Manu Singhvi, learned senior counsel appearing on behalf of the respondents informed the Court that in pursuance of the earlier directions, the Additional Director General and Inspector General of Police (Law and Order), West Bengal, addressed letters dated 19 March 2019 to (i) District Superintendents of Police; (ii) Commissioners of Police (including of Kolkata); (iii) Range Deputy Inspectors General of Police; (iv) Zonal Inspectors General of Police; and (v) the Additional Director General of Police, South Bengal, forwarding a copy of the order of this Court for information and necessary compliance. A similar communication dated 18 March 2019 was addressed by the Principal Secretary, Department of Home, Government of West Bengal to the Commissioner of Police, Kolkata for compliance with the order of this Court. A statement was also made before this Court on behalf of the respondents that neither has the film been banned by the Government of West Bengal nor has recourse been taken to the powers contained in Section 6 of the West Bengal Cinemas (Regulation) Act 1954 or Section 13 of the Cinematograph Act 1952. Dr Singhvi filed a chart indicating that the film was presently running in ten theatres. Mr Sanjay Parikh, learned counsel appearing on behalf of the petitioners submitted that the chart indicated that all the theatres where the film was being screened were situated outside Kolkata. Taking note of the grievance that following the communication addressed on 11 February 2019 by the Joint Commissioner of Police (Intelligence) of the Special Branch, the theatres where the film was being exhibited were compelled to stop screening the film, this Court observed:We are of the view that the Joint Commissioner of Police acted beyond the scope of his legitimate authority in directing the producer to arrange for a private screening of the film for a few senior officials, apprehending that the screening of the film may lead to political law and order issues.  The State of West Bengal is duty bound, once the film has been certified by the Central Board of Film Certification ( CBFC) to take necessary measures to protect the fundamental right to free speech and expression of the producer and the director and, for that matter, of the viewers to see the film unrestrained by extra constitutional restraintsAccordingly, this Court issued directions to the (i) Joint Commissioner of Police to forthwith withdraw 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 screening of the film and the State government shall take necessary steps for protecting the theatres exhibiting the film and for ensuring the safety of the members of the public who wish to view the film. The communications have been addressed to fifty-one establishments. The Principal Secretary, Home has also filed a compliance affidavit enclosing a copy of the communication addressed to all theatres where the film was being originally screened. On 25 March 2019, the Joint Commissioner of Police (Intelligence), Kolkata has withdrawn the letter addressed to the producer of the film on 11 February 2019.  11. Now it is in this background, that the grievance which has been addressed in the proceedings before this Court has to be assessed.

Reasoning: 12. From the narration of facts, it has become evident that Bhobishyoter Bhoot was released in theatres in West Bengal, both within and outside Kolkata on 15 February 2019. The release of the film was preceded a few days earlier by a letter on 11 February 2019 of the Joint Commissioner of Police(Intelligence) in the Special Branch to the producer seeking a private screening of the movie for a few senior officials at this end at the earliest . This was because, as he described, the inputs his office had received that the contents of the film may hurt public sentiments which may lead to political law and order issues . The film was pulled down by a majority of the theatres and out of forty eight exhibitors, only two continued to display the film. This Court has been informed by the State of West Bengal that it has not taken recourse to its powers either under the West Bengal Cinemas (Regulation) Act 1954 or the Cinematograph Act 1952. Yet, barring a couple of exceptions, all the theatre owners and exhibitors pulled the film off the radar. One of them, INOX Leisure Ltd eventually addressed a communication on 4 March 2019 to the producer stating that they were directed by the authorities to discontinue screening of the film keeping in mind the interest of the guests. In this backdrop, the legitimate grievance before the Court is that absent a recourse to the exercise of statutory power, the state and its agencies have resorted to extra constitutional means to abrogate the fundamental rights of the producer, director and the viewers16. 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 publicexhibition. Sub-section (1) of Section 5Bprovides 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 government, or as the case may be, the central government (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 Courts under Article 226 or, as the case may be, the original jurisdiction of this 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 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 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 social values and popular cultures, every art form seeks to espouse a vision. Underlying the vision of the artist is a desire to find a new meaning for existence. The artist, in an effort to do so, is entitled to the fullest liberty and freedom to critique and criticize. Satire and irony are willing allies of the quest to entertain while at the same time to lead to self-reflection. We find in the foibles of others an image of our own lives. Our experiences provide meaning to our existence. Art is as much for the mainstream as it is for the margins. The Constitution protects the ability of every individual citizen to believe as much as to communicate, to conceptualize as much as to share. Public power must be conscious of the fact that ours is a democracy simply because the Constitution recognizes the inalienable freedoms of every citizen. Power has been entrusted to the state by the people under a written Constitution. The state holds it in trust and its exercise is accountable to the people. The state does not entrust freedoms to the people: the freedoms which the Constitution recognizes are inseparable from our existence as human beings. Freedom is the defining feature of human existence. Freedoms are not subject to power. Public power is assigned by the people to government. Ours is a controlled Constitution, a Constitution which recognizes the fullest element of liberty and freedom and of the answerability of power to freedom. The views of the writer of a play, the metre of a poet or the sketches of a cartoonist may not be palatable to those who are criticized. Those who disagree have a simple expedient : of not watching a film, not turning the pages of the book or not hearing what is not music to their ears. The Constitution does not permit those in authority who disagree to crush the freedom of others to believe, think and express. The ability to communicate ideas is a legitimate area of human endeavor and is not controlled by the acceptability of the views to those to whom they are addressed. When the ability to portray art in any form is subject to extra constitutional authority, there is a grave danger that fundamental human freedoms will be imperiled by a cloud of opacity and arbitrary state behaviour17. As this case indicates, a producer of a film which has been certified by the CBFC needs to embark upon meticulous arrangements including 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 critical of prevailing cultures and threaten law abiding citizens into submission18. 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. Unless we were to read a positive obligation on the state to create and maintain conditions in which the freedoms guaranteed by the Constitution can be exercised, there is a real danger that art and literature would become victims of intolerance. In the present case, we are 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 power19. This leads us to the issue of relief. 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. We maintain and confirm the directions which have been issued. We issue 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 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 safety20. 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.