TaxTMI 
TaxTMI 
2019 (4) TMI 2113
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....sing 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 pris....
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....l 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 ....
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....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 wr....
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....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: We 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 screened. The justification for the above interim directions was set out in the interim order: Repeatedly in decisions of this Court, it has been held that onc....
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.... 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 restraints. Accordingly, 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....
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....at 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 viewers. 13. Commitment to free speech involves protecting speech that is palatable as well as speech that we do not want to hear. A declaration attributed to Voltaire: "I despise what you say but will defend to the death your right to say it" encapsulates the essence of the protection of free speech. Protection of the freedom of speech is founded on the belief that speech is worth defending even when certain individuals may not agree with or even despise what is being spoken. Nigel Warburton, Free Speech: A Very Short Introduction (Oxford University Press 2009), at Page 27. This principle is at the heart of democracy, a basic human right, and its protection is a mark of a civilized and tolerant society Id.. The reasons to defend free speech are both moral and instrumental. Moral arguments for the d....
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.... personal possession of no value except to the owner, if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is that it is robbing the human race--those who dissent from the opinion still more than those who hold it. Supra note 6, at Page 89. Ronald Dworkin argued that a government without extensive freedom of speech would lack legitimacy and should therefore not be called '"democratic": Free speech is a condition of legitimate government. Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if government has prevented anyone from expressing his convictions about what those laws and policies should be. Ronald Dworkin, "The Right to Ridicule", New York Review of Books, 23 March 2006. Dworkin conceptualizes democracy not just as a formalised structure for decision-making but as a constitutional concept that allows the participation of all individuals, including minorities with potentially unconventional views. Eric Barendt, F....
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....ls should have been the first victims of modern tyrannies... Tyrants know there is in the work of art an emancipatory force, which is mysterious only to those who do not revere it. Every great work makes the human face more admirable and richer, and this is its whole secret. And thousands of concentration camps and barred cells are not enough to hide this staggering testimony of dignity. This is why it is not true that culture can be, even temporarily, suspended in order to make way for a new culture... There is no culture without legacy... Whatever the works of the future may be, they will bear the same secret, made up of courage and freedom, nourished by the daring of thousands of artists of all times and all nations. Albert Camus and Justin O'Brien, Resistance, Rebellion, and Death, Random House, New York (1960). Simone De Beauvoir tells us how every artist, situated in the present uses her connect with reality to transcend social existence: In order for the artist to have a world to express he must first be situated in this world, oppressed or oppressing, resigned or rebellious, a man among men. But at the heart of his existence he finds the exigence which is common to a....
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....not be gainsaid that modern communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution... In Gajanan Visheshwar Birjur v. Union of India, (1994) 5 SCC 550 the Petitioner challenged the confiscation of books containing the writings of Mao Zedong which were imported from China under the provisions of the Customs Act. The Court noted that the show-cause notices as well as the final orders did not contain any specifications to indicate as to why the confiscation was warranted under the notification. Speaking for a two-judge Bench of this Court, Justice Jeevan Reddy opined: 10....we must express our unhappiness with attempts at thought control in a democratic society like ours. Human history is witness to the fact that all evolution and all progress is becaus....
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....tionally protected, cannot be held to ransom, by an intolerant group of people. The fundamental freedom Under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Articles 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of Government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself. In D.C. Saxena v. Hon'ble The Chief Justice of India (1996) 5 SCC 216, Justice K Ramaswamy, who delivered the opinion of the Court, opined thus: 30. Equally, debate on public issues would be uninhibited, robust and wide open. It may well include vehement, sarcastic and sometimes unpleasant sharp criticism of government and public officials. Absence of restraint in this area encourages a well-informed and politically sophisticated electoral debate to conform the Government in tune with the constitutional mandates to return a political party to power. Prohibition of freedom of speech and expression on public issues prevents and stifles the debat....
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....ly protected, cannot be held to ransom on a mere fall of a hat. The film in its entirety has a serious message to convey and is relevant in the present context. Doordarshan being a State controlled agency funded by public funds could not have denied access to screen the Respondent's documentary except on specified valid grounds. It was further held: 45. The refusal of the Appellants to telecast the film in the current case in the face of unanimous recommendations by their own committees set up in accordance with the direction of this Court is an issue to be addressed apart. The High Court of Bombay has not substituted its discretion for that of the authorities. On the contrary, the High Court has ruled that when the decision-making process has itself resulted in the recommendations to telecast, it is not open to Doordarshan to find other means just to circumvent this recommendation.... In Anand Chintamani Dighe v. State of Maharashtra 2001 Cri LJ 2203, the Government of Maharashtra had issued a notification declaring that every copy of the play titled "Mee Nathuram Godse Boltoy" and its translations in Gujarati or any other language would stand forfeited to the Government. ....
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....the Central Board of Film Certification (CBFC) as well as the appellate authority. One of us (D Y Chandrachud, J.) observed: 12.... Films which deal with controversial issues necessarily have to portray what is controversial. A film which is set in the backdrop of communal violence cannot be expected to eschew a portrayal of violence... The director has available to him all the tools of trade. Satire, humor and the ability to shock each one out of the mundane levels of existence is what embellishes art forms. The Constitution protects the right of the artist to portray social reality in all its forms. Some of that portrayal may take the form of questioning values and mores that are prevalent in society. The power of literature lies in the ability of the writer to criticise commonly held beliefs and ordinary human foibles. Equally, a writer, producer and director of a film have the discretion to depict the horrors of social reality.... The Court further noted: The certifying authority and the Tribunal were palpably in error in rejecting the film on the ground that it had characters which bear a resemblance to real life personalities. The constitutional protection Under Articl....
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....C 372 the UP Government sought to ban the screening of the film 'Aarakshan' dealing with the issue of reservation, after it had been certified U/A by the Censor Board constituted under the Cinematograph Act. Notwithstanding the certificate issued by the Board, the UP Government issued an order Under Section 6(1) of the Uttar Pradesh Cinemas (Regulation) Act, 1955 suspending exhibition of the film on the ground that it was likely to cause a breach of peace. Following the ruling in K.M. Shankarappa v. Union of India (supra), a two-judge Bench of this Court held: 23. It is for the State to maintain law and order situation in the State and, therefore, the State shall maintain it effectively and potentially. Once the Board has cleared the film for public viewing, screening of the same cannot be prohibited in the manner as sought to be done by the State in the present case. As held in K.M. Shankarappa (Supra) it is the responsibility of the State Government to maintain law and order. In S. Tamilselvan v. State of Tamil Nadu, 2016 SCC OnLine Mad 5960 a Tamil novel was alleged to narrate conventions that were 'non-existent and defamatory' to the residents of a certain ar....
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....r the film is exhibited, which would also include providing police protection to the persons who are involved in the film/in the exhibition of the film and the audience watching the film, whenever sought for or necessary. 15. An academic Article expresses the problem with film censorship in India in the following words: Film censorship in India exemplified the distinction and the tension between citizen and population that is a characteristic feature of contemporary democracy...though the discourse of democracy is predicated on the figure of the citizen and its corollaries of autonomy, equal rights, and self-representation, the modernizing agendas of post-colonial nation-states like India presume populations which are the objects of government policy rather than as citizens... Ganti T. 2009,' The Limits of Decency and the Decency of Limits', as cited in Gautam Bhatia, Offend, Shock or Disturb: Free Speech under the Indian Constitution (Oxford University Press 2016), at Page 180 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 d....
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....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. of the West Bengal Cinemas (Regulation) Act 1954) and the Central Act (Section 13 Section ....
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....tutory 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, th....
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.... 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 behaviour. 17. 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 'inter....