The petitioners alleged the Government of West Bengal and the police authorities of misusing their powers to abruptly remove the film 'Bhobishyoter Bhoot' from theatres (the day after it released). The case explains that an unofficial ban imposed through extrajudicial means infringes upon the Right to Freedom of Speech and Expression that is guaranteed under section 19(1)(a) under the Indian Constitution.

The case deals with the right of the producers to screen a film on receiving an appropriate certification from the Central Board of Film Certification as well as the corresponding duty of the State to protect Fundamental rights of the citizens.

Indibility Creative Pvt Ltd & Ors v. Govt of West Bengal and Ors
Court: Supreme Court of India ; Citation: Writ Petition (Civil) 306 of 2019 ;
Delivered On: April 11th, 2019 ; Bench: Dr. D. Y. Chandrachud, Hemant Gupta, J.J.

Issues:

1. Whether the State was empowered to cast a blanket ban on a film that had been duly certified by the Central Board of Film Certification?
2. Did the State resort to unconstitutional means to stop the screening of the film which in turn deprived the petitioners of their fundamental rights? (Mainly, the Right to Freedom of Speech and Expression in this case)

Rule:
The Judgement referred to the following sections of the relevant laws in deciding upon the issued framed

1. Subsection (1) of Section 5B of The Cinematograph Act,1952[1]- This section lists certain cases in which a film shall not receive certification from the CBFC
2. Section 6 of the West Bengal Cinemas (Regulation) Act 1954[2] and Section 13 of the Cinematograph Act 1952[3]- These sections grant power to the state or the central government to suspend the exhibition of films provided that the due procedure laid down by the respective sections is followed.
3. Though the petitioners claim that their Fundamental rights guaranteed under Articles 14, 19(1)(a)[4], 19(1)(g) and 21 of the Constitution are violated; the Judgement goes to great depths to examine the true essence of the Right to Freedom of Speech and Expression.

Analysis:
As to issue 1, the Supreme Court recognized that the Central Board of Film Certification was an expert body with respect to the 'public exhibition of films in India' and had the exclusive authority to certify or deny certification for the public viewing of films. The Centre or the state government are not vested with the power to halt such public exhibition except in certain cases where 'revisional powers' (mentioned in the Cinematograph Act, 1952) can be exercised. The constitutionality of section 6(1) which granted the revisional powers to the state was challenged in KM Shankarappa v. Union of India.

To clarify, revisional powers meant that the state had the power to review the certification of a film, which meant that the state could interfere with the decisions given by the Central Board of Film Certification. The Indibility judgement relied upon the reasoning established in the landmark Shankarappa judgement: "Once an expert body (CBFC) has considered the impact of the film on the public and has cleared the film...it is for the state government concerned to see that law and order is maintained."

This precedent was upheld in cases like Prakash Jha v. Union of India 2011 and Viacom 18 Media Pvt Ltd v. Union of India, 2018 where the Supreme Court held that the state or its functionaries could not ban the screening of a film once it had been approved by the CBFC. Both the judgements imply that the CBFC has supreme authority over the certification of films and the executive cannot meddle with the former's decisions.

Apart from the revisional powers under section 6, it should also be noted that the executive is empowered under section 13 of the Cinematograph Act to suspend the exhibition of films if it is likely to cause a breach of public peace. However, in the given case, the Government of West Bengal duly informed the court that it had not resorted to Section 6 of the West Bengal Cinemas (Regulation) Act 1954 or Section 13 of the Cinematograph Act 1952, which implied that the State did not carry any official procedure so as to suspend the film.

From the evidence submitted to the court by the petitioners, it was held that the West Bengal Government had resorted to unconstitutional means to prohibit the film screening. Such unlawful interference led to the violation of the freedom of speech and expression of the petitioners.

With respect to issue 2, the court felt the need to clarify what constitutes 'the right to freedom of speech and expression' for which it includes philosophical and legal explanations. The judgement gives an over-arching view as to how sacred free speech is in a democracy and the repercussions of promoting or curbing it. The wide variety of moral arguments ranging from those of John Stuart Mill to Simone De Beauvoir can be summarized as follows

1. Free speech is intrinsic to human life. Free speech paves path for creative ideas and innovation which help society to flourish.
2. Free speech allows participation of all individuals, which creates laws and policies democratically.
3. The state has a duty to protect free speech even when it may despise what is being said.
4. Curbing free speech is an injury not to a single individual, but to the entire society.
5. There is an inseparable link between free speech and art. The purpose of art cannot be realized without the freedom of speech and expression.

The bench explains the vitality of this fundamental right through several constitutional precedents. These can be summed up as follows:

The court held that the state violated the petitioners' fundamental rights and hence is liable to pay damages of 20 lakhs and an additional sum of 1 lakh for the legal proceedings. The court pronounces that Freedom of speech is an indivisible aspect of every citizen. Citizens have a right to express their consenting or dissenting views through speech, printing, or electronic media. Free speech not only promotes tolerance, but it also provides for public education and awareness.

Similarly, it allows the expression of minority views in a democracy. If we remove the element of free speech, the debates over social, economic, and political issues will come to a dead end, which will hamper the progress of the nation. If a citizen is criticizing the government- directly or indirectly through sarcastic comments or satires (as seen in case of the movie in question), he/she is exercising his right which falls within the limits of 19(1)(a). Therefore, suppressing free speech is a "death knell to democracy[5]" and any such attempt is a deviation from constitutional values.

It is true that such freedom is not absolute and is subjected to the restrictions set out in article 19(2)[6]. The court relies on S. Rangarajan v. P. Jagjivan Ram and reiterates that the state cannot execute a blanket ban of a film on the mere account of threat to social unrest or violence. Taking away of such freedom must be justified "on the anvil of necessity and not the quicksand of convenience or expediency.[7]"

Hence, the state has a duty to not trample on the fundamental rights of its citizens, but to uphold them if they are subjected to any threat. In the case of movies or broadcast media, it is the duty of the police to ensure that the audience does not break into unrest or create disturbances to the social wellbeing.

The fundamental rights create a positive mandate on the state to ensure that the conditions in which these freedoms flourish are maintained. Therefore, the police and the state functionaries should strive to maintain pluralism and ensure the smooth dissemination of controversial views (that fall within the ambit of 19(1)(a)).

The judgement also elaborately discusses the role of art in human society and how art (in any of its forms) embedded with the freedom of speech and expression. Similarly, it highlights that the state functionaries do not have unrestrained powers of their own but derive their powers and duties by the Constitution. From the facts of the case, the court holds that the police have stepped beyond their constitutional powers and have taken up a concerted effort to silence free speech. Thus, the court orders the state authorities to ensure that the film is screened across Kolkata and the audience, theatre owners and the filmmakers are duly protected.

Conclusion
Indibility Creative Pvt Ltd v. Govt of West Bengal is an avant-garde Judgement that propounds the modern view of liberalism. It shows the inter-relation between two distinct yet inseparable areas of human civilization: Constitutional guarantees and Art as a manifestation of freedom.

This judgement also employs the positive law of the land I.e., the constitution as well as draws from the principles of natural justice to deliver an informed decision. It provides for the damages in monetary terms and by ordering the unhindered film screening.

Likewise, it looks at the necessity of upholding free speech through various angles: whether it is for individual autonomy, wellbeing of the minorities, social progress, or upholding democracy. The judgement is a fine example of the concept of 'constitutionalism' and continues to be an important precedent for future cases of violation of free speech and media rights.

End-Notes:

1. 5B Principles for guidance in certifying films:
   
   1. A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of 1 (the sovereignty and integrity of India) the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation of contempt of court or is likely to incite the commission of any offence.
       
   2. Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.
2. 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:
      Provided that before confirming any such order, such Commissioner shall give to persons prevented from exhibiting the film, an opportunity of showing cause against such order.
   3. An order made under this section shall remain in force for a period of two months from the date thereof, but the State Government may, in the case of an order made by itself, and the Commissioner may, in the case of an order made by a District Magistrate and confirmed by him, if it or he is of opinion that the order should continue in force, direct that the period of suspension or prohibition shall be extended by such further period or periods as it or he thinks fit.
3. 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.
4. Protection of certain rights regarding freedom of speech etc
   
   1. All citizens shall have the right
      
      1. to freedom of speech and expression;
      2. to assemble peaceably and without arms;
      3. to form associations or unions;
      4. to move freely throughout the territory of India;
      5. to reside and settle in any part of the territory of India; and
      6. omitted
      7. to practise any profession, or to carry on any occupation, trade, or business
5. LIC v. Manubhai Shah (1992) 3 SCC 637
6. Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
7. S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574

Written By: Dhruva Upadhye, 2nd year law student at Jindal Global Law School