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. 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. 2 4 Bhobishyoter Bhoot has a UA certification for public exhibition, issued by the Central Board of Film Certification 1 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.

1 ‘CBFC’ 3 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.

speech/#HarPriFreSpe 11 chance of truth emerging from its collision with error and half-

39 Section 6 : Power of State Government or District Magistrate to suspend exhibition of films in certain cases (1) The State Government in respect of the whole of West Bengal or any part thereof, and a District Magistrate in respect of the area within his jurisdiction, may, if it or he is of (2) Where an order under sub-section (1) has been issued by a District Magistrate, a copy thereof, together with a statement of the reasons therefor, shall forthwith be forwarded by the District Magistrate to the Commissioner of the Division comprising the district under the jurisdiction of the District Magistrate and such Commissioner may either confirm or discharge the order :

40 Section 13 : Power of Central Government or local authority to suspend exhibition of films in certain cases. 13. (1) The Lieutenant-Governor or, as the case may be, the Chief Commissioner, in respect of the 1[whole or any part of a Union territory] and the district magistrate in respect of the district within his jurisdiction, may, if he is of opinion that any film which is being publicly exhibited is likely to cause a breach of the peace, by order, suspend the exhibition of the film and during such suspension the film shall be deemed to be an uncertified film in the state, part or district, as the case may be. (2) Where an order under sub-section (1) has been issued by the Chief Commissioner or a district magistrate, as the case may be, a copy thereof, together with a statement of reasons therefore, shall forthwith be forwarded by the person making the same to the Central Government, and the Central Government may either confirm or discharge the order.

An order made under this section shall remain in force for a period of two months from the date thereof, but the Central Government may, if it is of opinion that the order should continue in force, direct that the period of suspension shall be extended by such further period as it thinks fit.

20 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. We order and direct the respondents to pay to the petitioners compensation which we quantify at Rs 20 lakhs within a period of one month from the date of the present judgment. 21 The Writ Petition is allowed in the above terms. The petitioners shall be entitled to the costs of the proceedings quantified at Rs 1 lakh, to be paid over within one month.

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