TaxTMI 
TaxTMI 
2019 (4) TMI 2113
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....etition: 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....
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....lm 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 B....
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....l 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 othe....
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.... 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 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 a....
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....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 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 ....
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....nd 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 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 it....
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....tant to him due to its connection with truth and development. Supra note 6, at Page 73. He emphasises the value of free speech in the following words: Were an opinion a 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....
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.... have tried to define, unites whereas tyranny separates. It is not surprising, therefore, that art should be the enemy marked out by every form of oppression. It is not surprising that artists and intellectuals 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 ....
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....cracy. Freedom to air one's views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship. It cannot 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 Ben....
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....ry to the Constitution in approving the film for public exhibition. The Court concluded that the freedom of speech and expression could be restricted only under the limited circumstances in Article 19(2): Freedom of expression which is legitimate and constitutionally 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....
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....hmanan held: 44. In our opinion, the Respondent has a right to convey his perception on the oppression of women, flawed understanding of manhood and evils of communal violence through the documentary film produced by him... The freedom of expression, which is legitimate and constitutionally 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 recomm....
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....Petitioner was denied certification by the Central Board of Film Certification to exhibit a film on the grounds that the film was "full of gory visuals of violence and gruesome killings" and that "certain characters have definite resemblance with the real life personalities". A Division Bench of the Bombay High Court quashed the orders of 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....
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....earing captivity or bodily harm or economic and social sanctions for his unconventional or critical views. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends. In Prakash Jha Productions v. Union of India, (2011) 8 SCC 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 b....
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....o the statutory provisions and infringe the fundamental right of the Petitioners. The Bench elucidated on the obligation of State authorities to maintain law and order when the film is being exhibited: 20. Keeping in view the fact situation, we have no hesitation in stating by way of repetition and without any fear of contradiction that it is the duty of the State to sustain the law and order situation whenever 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 ra....
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.... in sanctioning films for public exhibition. provides 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 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 ....
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....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 sil....
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....le 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 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 u....