Supreme Court Upholds Freedom of Expression: Indibily Creative Pvt Ltd vs. State of West Bengal (2019)

**LEGAL ISSUE:** Whether a State government can obstruct the public exhibition of a film that has been certified by the Central Board of Film Certification (CBFC).
**CASE TYPE:** Constitutional Law, Freedom of Speech and Expression
**Case Name:** Indibily Creative Pvt Ltd & Ors vs. Govt of West Bengal & Ors
**[Judgment Date]:** April 11, 2019

Introduction

Date of the Judgment: April 11, 2019
Citation: (2019) INSC 338
Judges: Dr Dhananjaya Y Chandrachud, J and Hemant Gupta, J.

Can a state government, under the guise of maintaining law and order, prevent the screening of a film that has been cleared by the Central Board of Film Certification (CBFC)? The Supreme Court of India addressed this crucial question in a case concerning the Bengali film “Bhobishyoter Bhoot”. The Court reaffirmed the fundamental right to freedom of speech and expression, emphasizing that once a film is certified by the CBFC, no other authority, including the state, can obstruct its public exhibition through extra-constitutional means. The judgment was authored by Dr. Dhananjaya Y Chandrachud, J, with a bench comprising of Dr Dhananjaya Y Chandrachud, J and Hemant Gupta, J.

Case Background

Indibily Creative Pvt Ltd, along with its directors, produced the Bengali film “Bhobishyoter Bhoot,” a social and political satire. The film received a UA certification from the CBFC on November 19, 2018, and was scheduled for release on February 15, 2019, in Kolkata and other districts of West Bengal. The film was promoted through various media channels. However, four days prior to its release, on February 11, 2019, the second petitioner received a call from an official of the State Intelligence Unit of the Kolkata Police, requesting a private screening of the film for senior officials, citing concerns that the film might hurt public sentiments and lead to law and order issues. The petitioners refused to comply with this request, stating that the film had already been cleared by the CBFC. Despite this, the film was released on February 15, 2019, and initially ran to packed houses. However, on February 16, 2019, most exhibitors abruptly stopped screening the film without any official communication from the producers. Exhibitors cited instructions from unnamed “higher authorities” or local police stations, who threatened them with potential damage to their cinema halls if they continued screening the film. By the time the matter reached the Supreme Court, only two theaters outside Kolkata were still exhibiting the film.

Timeline

Course of Proceedings

The petitioners approached the Supreme Court of India under Article 32 of the Constitution, alleging that the State of West Bengal, through its Home Department and the Kolkata Police, had unlawfully obstructed the public exhibition of their film. The Court issued interim directions on March 15, 2019, ordering the state to ensure no obstruction to the film’s screening. On March 25, 2019, the Court directed the Joint Commissioner of Police to withdraw his letter requesting a private screening and ordered the state to communicate to all theaters that there was no ban on the film. The Court also called for affidavits of compliance from the state officials.

Legal Framework

The Supreme Court considered the following legal provisions:

• Article 19(1)(a) of the Constitution of India: Guarantees the fundamental right to freedom of speech and expression to all citizens.

• Article 19(2) of the Constitution of India: Allows for reasonable restrictions on the freedom of speech and expression in the interest 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.

• Article 21 of the Constitution of India: Guarantees the right to personal liberty.

• Section 5B of the Cinematograph Act, 1952: Specifies the principles for guidance in certifying films. Sub-section (1) states that a film shall not be certified for public exhibition if it is against 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 involves defamation or contempt of court or is likely to incite the commission of any offense.
  “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.”

• Section 6 of the West Bengal Cinemas (Regulation) Act, 1954: Grants the State Government or District Magistrate the power to suspend the 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 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.”

• Section 13 of the Cinematograph Act, 1952: Grants the Central Government or local authority the power to suspend the exhibition of films in certain cases.
  “(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.”

The Court highlighted that the freedom of speech and expression is a cornerstone of democracy and that any restrictions on it must be within the parameters of Article 19(2) of the Constitution. It also noted that the CBFC is the sole authority to certify films for public exhibition and once a film is certified, the state cannot act as a “super-censor”.

Arguments

The petitioners argued that:

• The State of West Bengal, through its Home Department and Kolkata Police, had unlawfully obstructed the public exhibition of their film, which had been duly certified by the CBFC.

• The actions of the state amounted to a subversion of the rule of law and a violation of their fundamental rights under Articles 14, 19(1)(a), 19(1)(g), and 21 of the Constitution.

• The state’s attempt to interfere with the exhibition of the film was destructive of the freedom of speech and expression.

• The CBFC, as an expert body, is entrusted with the statutory power to determine whether a film should be certified for public viewing and constitutes the sole repository of that power.

• The state had adopted extra-constitutional methods, violating the legal principles established in previous Supreme Court decisions.

The respondents, the State of West Bengal, argued that:

• They had not banned the film nor had they taken recourse to powers under the West Bengal Cinemas (Regulation) Act 1954 or the Cinematograph Act 1952.

• They had issued communications to ensure compliance with the Court’s interim directions and that the film was running in ten theaters.

The petitioners innovatively argued that the state’s actions were not only a violation of their fundamental rights but also a subversion of the rule of law, as the state was acting as a ‘super-censor’ despite the film being certified by the CBFC.

Issues Framed by the Supreme Court

The Supreme Court addressed the following issues:

1. Whether the State of West Bengal, through its Home Department and the Kolkata Police, had unlawfully obstructed the public exhibition of the film “Bhobishyoter Bhoot,” which had been certified by the CBFC.
2. Whether the actions of the state amounted to a subversion of the rule of law and a violation of the petitioners’ fundamental rights under Articles 14, 19(1)(a), 19(1)(g), and 21 of the Constitution.
3. Whether the state’s attempt to interfere with the exhibition of the film was destructive of the freedom of speech and expression.
4. Whether the CBFC is the sole authority to determine whether a film should be certified for public viewing.
5. Whether the state had adopted extra-constitutional methods, violating the legal principles established in previous Supreme Court decisions.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court relied on the following cases and legal provisions:

Judgment

The Supreme Court held that the State of West Bengal had acted unlawfully by obstructing the exhibition of the film “Bhobishyoter Bhoot”. The Court emphasized that once a film is certified by the CBFC, no other authority, including the state government, can interfere with its public exhibition through extra-constitutional means. The Court also noted that the state had failed to protect the fundamental rights of the producers, actors, and audience, and had instead become an instrument in silencing critical voices. The Court ordered the state to pay compensation of ₹20 lakhs to the petitioners for the violation of their fundamental rights, and ₹1 lakh towards the cost of the proceedings.

The following authorities were viewed by the Court:

• Romesh Thapar v. State of Madras, AIR 1950 SC 124: *Cited to emphasize the importance of freedom of speech and the press in a democracy.*
• LIC v. Manubhai Shah, (1992) 3 SCC 637: *Cited to highlight the role of media as public educators and the need to protect freedom of speech.*
• Gajanan Visheshwar Birjur v. Union of India, (1994) 5 SCC 550: *Cited to express unhappiness with attempts at thought control in a democratic society.*
• S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574: *Cited to emphasize the positive duty of the state to protect freedom of speech and expression.*
• D.C. Saxena v. Hon’ble The Chief Justice of India, (1996) 5 SCC 216: *Cited to highlight that debate on public issues should be uninhibited.*
• KM Shankarappa v. Union of India, (2001) 1 SCC 582: *Cited to reject the argument that the government can review decisions of the Board or Tribunal due to public resentment.*
• Director General, Directorate General of Doordarshan v. Anand Patwardhan, (2006) 8 SCC 433: *Cited to emphasize that a state-controlled agency cannot deny access to screen a documentary except on valid grounds.*
• Anand Chintamani Dighe v. State of Maharashtra, 2001 Cri LJ 2203: *Cited to highlight the importance of accommodating diverse viewpoints and cultures in a democratic society.*
• F.A. Picture International v. Central Board of Film Certification, Mumbai, AIR 2005 Bom 145: *Cited to emphasize that filmmakers have the discretion to depict the horrors of social reality.*
• Vishesh Verma v. State of Bihar, (2008) 56 (2) BLJR 1773: *Cited to highlight that creative artists are free to project their perception of society and political systems.*
• Maqbool Fida Hussain versus Rajkumar Pandey, 2008 Cri LJ 4107: *Cited to uphold artistic freedom and the right to dissent.*
• Prakash Jha Productions v. Union of India, (2011) 8 SCC 372: *Cited to reiterate that once a film is cleared by the Board, its screening cannot be prohibited by the State.*
• S. Tamilselvan versus State of Tamil Nadu, 2016 SCC OnLine Mad 5960: *Cited to emphasize the need for positive measures to protect freedom of expression.*
• Viacom 18 Media Pvt Ltd. Versus Union of India, (2018) 1 SCC 671: *Cited to highlight that once the Board grants certification, non-exhibition of the film by the States would be contrary to the statutory provisions.*

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by its commitment to upholding the fundamental right to freedom of speech and expression. The Court emphasized that this right is a cornerstone of democracy and that any restrictions on it must be within the parameters of Article 19(2) of the Constitution. The Court was also concerned about the state’s use of extra-constitutional means to suppress dissent and critical voices. The Court highlighted that the state’s actions had a chilling effect on artistic expression and that such actions could not be countenanced in a free society. The Court also emphasized the importance of satire and irony as forms of expression that can lead to self-reflection and societal change.

The Court’s reasoning was heavily influenced by legal principles and precedents that emphasized the importance of free speech and the rule of law.

The Court considered the argument that the state was not responsible for the actions of the exhibitors and that the state had not banned the film, but the Court rejected this argument, holding that the state’s actions, even without a formal ban, had effectively prevented the film’s exhibition. The Court also considered the argument that the state was acting in the interest of maintaining law and order, but the Court rejected this argument, holding that the state’s duty was to protect freedom of expression, not to suppress it.

The Court’s decision was primarily based on the following points:

• The film was duly certified by the CBFC, and thus, no other authority could interfere with its exhibition.
• The state had used extra-constitutional means to obstruct the film’s exhibition.
• The state’s actions violated the fundamental right to freedom of speech and expression.
• The state had a positive obligation to protect freedom of expression, not to suppress it.

The Court also emphasized that the state must ensure that conditions in which freedoms can be exercised are maintained and that the instruments of the state must be utilized to effectuate the exercise of freedom. The Court noted that the state was duty-bound to ensure the prevalence of conditions in which those freedoms can be exercised.

The Court quoted the following from the judgment:

“Commitment to free speech involves protecting speech that is palatable as well as speech that we do not want to hear.”

“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 state does not entrust freedoms to the people: the freedoms which the Constitution recognizes are inseparable from our existence as human beings.”

There was no dissenting or concurring opinion.

Key Takeaways

• Once a film is certified by the CBFC, no other authority, including the state government,can obstruct its public exhibition through extra-constitutional means.
• The state has a positive obligation to protect freedom of expression and cannot act as a “super-censor.”
• The freedom of speech and expression is a cornerstone of democracy, and any restrictions on it must be within the parameters of Article 19(2) of the Constitution.
• The state must ensure that conditions in which freedoms can be exercised are maintained and that the instruments of the state must be utilized to effectuate the exercise of freedom.
• Satire and irony are forms of expression that can lead to self-reflection and societal change and should be protected.
• The police are not the self-appointed guardians of public morality and are subject to the rule of law.
• The state does not entrust freedoms to the people: the freedoms which the Constitution recognizes are inseparable from our existence as human beings.

Impact of the Judgment

The judgment has reinforced the importance of freedom of speech and expression in India and has set a precedent against state-sponsored censorship. The judgment has also made it clear that the state cannot use law and order concerns as a pretext to suppress dissent or artistic expression. The judgment has also highlighted the need for the state to protect the fundamental rights of its citizens and not to act as an instrument in silencing critical voices. The judgment has had a positive impact on the film industry and has empowered filmmakers to create content without fear of censorship or intimidation.

Conclusion

The Supreme Court’s judgment in the case of Indibily Creative Pvt Ltd vs. State of West Bengal is a landmark decision that has reaffirmed the importance of freedom of speech and expression in India. The judgment has made it clear that the state cannot act as a “super-censor” and that once a film is certified by the CBFC, no other authority can interfere with its public exhibition. The judgment has also highlighted the need for the state to protect the fundamental rights of its citizens and not to act as an instrument in silencing critical voices. The judgment has had a positive impact on the film industry and has empowered filmmakers to create content without fear of censorship or intimidation. The case serves as a reminder that in a vibrant democracy, diverse voices and opinions must be protected and that the state must act as a guardian of freedom of expression, not as a suppressor of it.