REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

Writ Petition (Civil) No   306 of 2019

Indibility Creative Pvt Ltd & Ors                                   ...Petitioners        

Versus

Govt of West Bengal  & Ors                               ...Respondents

J U D G M E N T  

Dr Dhananjaya Y Chandrachud, J

1  Motivated by a mission to support meaningful Bengali cinema, the petitioners

produced  a  film  titled  Bhobishyoter  Bhoot.  Their  grievance,  while  invoking  the

jurisdiction of this Court under Article 32 of the Constitution is that the State of West

Bengal,  its  Department  of  Home and  the  Kolkata  Police  have  caused an  “utterly

unlawful obstruction of the public exhibition of their Bengali feature film”.  Simply put,

their  grievance  is  summarized  in  the  extract  which  we  reproduce  from  the  first

paragraph of the petition:

“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.”

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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

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.

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4 Bhobishyoter Bhoot has a UA certification for public exhibition, issued by the

Central Board of Film Certification1 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.

6 By the time that this Court was moved in the exercise of its original jurisdiction,

the film had been taken off the screens which fall under the jurisdiction of the Kolkata

police.  Of forty eight exhibitors and sixty screens, only two in upcountry districts of

West Bengal continued to exhibit the film.  The unceremonious pulling out of the film

received a considerable degree of press coverage in the print  media.  Among the

articles were those in the daily editions of: (i) Ananda Bazar Patrika dated 17.02.2019;

(ii) The Telegraph dated 17.02.2019; (iii) Pratidin dated 17.02.2019; (iv) The Times of

India dated 17.02.2019; and (v) Aaj Kaal dated 17.02.2019. On 16 February 2019, the

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petitioners addressed a communication to the exhibitors and to Eastern India Motion

Pictures  Association  which  represents  the  producers,  directors,  exhibitors,  film

laboratories and studio owners. E-mails were addressed to the large exhibitors – Inox

movies, PVR cinemas and Cinepolis seeking explanation for the abrupt withdrawal of

the film. No response was received.  The petitioners also addressed a communication

on 19 February 2019 to the Police Commissioner, Kolkata seeking a clarification on

whether the police had instructed exhibitors to refrain from screening the film. The

petitioners sought an assurance that their fears were misplaced.  These efforts were

met with silence. In sum and substance, the apprehension of the petitioners is that

there has been an unlawful 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  others including  the  director  of  the  film,  Anik  Datta,  the  co-script writer Utsav Mukherji. There have been several meetings and talks to decry the obstruction posed to the freedom of speech and  expression  of  cinema artists,  directors  and  producers. There have been open letters addressed to the State despite which there has been no response.”

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In this backdrop, recourse to the jurisdiction of this Court has been taken to protect

the  fundamental  right  to  free  speech  and  expression  of  the  petitioners  and  the

audience, besides the rights to personal liberty and to the protection of business.  

7 The basis on which the jurisdiction has been invoked is that:

(i) The  film  having  received  certification  for  public  exhibition  by  CBFC,  the

obstruction caused by the state of West Bengal through its Home Department

and the Kolkata police amounts to a subversion of the rule of law;  

(ii) These acts of obstruction to the public exhibition of the film amount to a defiance

of  the  law declared by  this  Court  according to  which a  film which  has been

cleared by the CBFC cannot be subject to censorship by the state nor can the

state raise issues of law and order to restrain its exhibition;  

(iii) The attempt by the functionaries of the state to interfere with the exhibition of the

film is destructive of the freedom of speech and expression;    

(iv) CBFC  as  an  expert  body  is  entrusted  with  the  statutory  power  under  the

Cinematograph Act  to  determine whether  a film should  be certified  for  public

viewing and constitutes the sole repository of that power; and  

(v) The extra constitutional method which has been adopted by the state and its

agencies is destructive of the fundamental rights of the petitioners, besides being

contrary  to  the  legal  principles  enunciated  in  the  decisions  of  this  Court  in

Prakash Jha Productions v  Union of India2, Manohar Lal Sharma v  Sanjay

Leela Bhansali3 and  Via Com 18 Media Pvt Ltd  v  Union of India4,  among

others.  The petitioners invoke the Mandamus of the Court to (i) restrain the first,

second and third respondents from obstructing the unhindered exhibition of the

2 (2011) 8 SCC 372 3 (2018) 1 SCC 770 4 (2018) 1 SCC 761

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film; (ii) abide by the certificate issued by the CBFC; (iii) provide police protection

to those involved in the exhibition of the film and the audience at the theatres;

and (iv)   uphold the rule of law 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 above interim directions was set out in the interim order:

“Repeatedly, in decisions of this court, it has been held that once a film has been duly certified by CBFC, it is not open to any authority either of the State Government or otherwise to issue formal  or  informal  directions  preventing  the producer from having  the  film  screened.  Such  actions  of  the  State directly impinge upon the fundamental right to the freedom of speech and expression guaranteed under Article 19(1) of the Constitution of India.”

9 When the petition came up on 25 March 2019, Dr Abhishek Manu Singhvi,

learned senior counsel appearing on behalf of the respondents informed the Court

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that  in  pursuance  of  the  earlier  directions,  the  Additional  Director  General  and

Inspector General of Police (Law and Order), West Bengal, addressed  letters dated

19 March 2019 to (i) District Superintendents of Police; (ii) Commissioners of Police

(including  of  Kolkata);  (iii)  Range Deputy  Inspectors  General  of  Police;  (iv)  Zonal

Inspectors General of Police; and (v) the Additional Director General of Police, South

Bengal, forwarding a copy of the order of this Court for “information and necessary

compliance”.  A similar communication dated 18 March 2019 was addressed by the

Principal  Secretary,  Department  of  Home,  Government  of  West  Bengal  to  the

Commissioner  of  Police,  Kolkata  for  compliance  with  the  order  of  this  Court.  A

statement was also made before this Court on behalf of the respondents that neither

has the film been banned by the Government of West Bengal nor has recourse been

taken to the powers contained in Section 6 of the West Bengal Cinemas (Regulation)

Act 1954 or Section 13 of the Cinematograph Act 1952.   Dr Singhvi filed a chart

indicating  that  the  film  was  presently  running  in  ten  theatres.  Mr  Sanjay  Parikh,

learned  counsel  appearing  on  behalf  of  the  petitioners  submitted  that  the  chart

indicated  that  all  the  theatres  where  the  film  was  being  screened  were  situated

outside Kolkata.  Taking  note  of  the  grievance  that  following  the  communication

addressed on 11 February 2019 by the Joint Commissioner of Police (Intelligence) of

the Special Branch, the theatres where the film was being exhibited were compelled

to stop screening the film, this Court observed:

“We are of  the view that  the Joint  Commissioner of  Police acted beyond the scope of his legitimate authority in directing 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.”

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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  Bengal  and  the  Director

General of Police noting that “we will hold them accountable to ensure compliance

with the above direction”.    

10 In  pursuance  of  the  directions  which  were  issued  on  25  March  2019,  the

Director and Inspector General of Police, State of West Bengal has filed an affidavit

stating that he had issued letters to all exhibitors and theatre owners where the film

was being originally screened on 27 March 2019 indicating that there neither was nor

is any ban on the screening of the film and the State government shall take necessary

steps for protecting the theatres exhibiting the film and for ensuring the safety of the

members of the public who wish to view the film. The communications have been

addressed to fifty-one establishments.  The Principal Secretary, Home has also filed a

compliance affidavit enclosing a copy of the communication addressed to all theatres

where  the  film  was  being  originally  screened.   On  25  March  2019,  the  Joint

Commissioner of Police (Intelligence), Kolkata has withdrawn the letter addressed to

the producer of the film on 11 February 2019.  

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11 Now it is in this background, that the grievance which has been addressed in

the proceedings before this Court has to be assessed.   

12 From the narration of facts, it has become evident that Bhobishyoter Bhoot was

released in theatres in West Bengal, both within and outside Kolkata on 15 February

2019.  The release of the film was preceded a few days earlier  by a letter on 11

February  2019  of  the  Joint  Commissioner  of  Police  (Intelligence)  in  the  Special

Branch to the producer seeking “a private screening of the movie for a few senior

officials at this end at the earliest”.  This was because, as he described, the inputs his

office had received “that the contents of the film may hurt public sentiments which

may lead to political law and order issues”.  The film was pulled down by a majority of

the theatres and out of forty eight exhibitors, only two continued to display the film.

This  Court  has been informed by the State  of  West  Bengal  that  it  has not  taken

recourse to its powers either under the West Bengal Cinemas (Regulation) Act 1954

or the Cinematograph Act 1952.  Yet, barring a couple of exceptions, all the theatre

owners and 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

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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.5 This principle is at the

heart of democracy, a basic human right, and its protection is a mark of a civilized and

tolerant society.”6

The reasons to defend free speech are both moral and instrumental. Moral arguments

for the defense of free speech range from a conception of what it is to be a person, to

the  idea  that  curtailments  of  speech  and  expression  are  an  infringement  of  an

individual’s autonomy or dignity—either as a speaker or a listener, or both.7 These

arguments are based on the intrinsic value of free speech for human beings rather

than  the  measurable  consequences  that  might  flow  from  preserving  it.8 The

instrumental argument on the other hand is based on the notion that preserving free

speech produces tangible benefits, whether in terms of increased personal happiness,

a flourishing society, or even economic benefits. ”9

John Stuart  Mill,  one  of  the  most  influential  philosophers  and  intellectuals  of  the

nineteenth  century,  presented  one  of  the  first  and  perhaps  what  is  still  the  most

famous liberal defense of free speech.10 His classical book  On liberty continues to

dominate philosophical debate about free speech:  

“Mill defends the view that extensive freedom of speech is a precondition  not  just  for  individual  happiness,  but  for  a flourishing society.  Without  free expression,  humankind may be robbed of ideas that would otherwise have contributed to its development.  Preserving  freedom of  speech  maximizes  the

5 Nigel Warburton, Free Speech: A Very Short Introduction (Oxford University Press 2009), at Page 27 6 Id.   7Supra note 6, at Page 59 8 Id 9 Id, at Page 57. 10 Freedom of Speech, Stanford Encyclopaedia of Philosophy, available at https://plato.stanford.edu/entries/freedom- speech/#HarPriFreSpe

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chance of truth emerging from its collision with error and half- truth.  It  also  reinvigorates  the  beliefs  of  those  who  would otherwise be at risk of holding views as dead dogma.”11

This  powerful  defense  of  freedom of  speech  however  is  also  accompanied  by  a

limitation on free expression,  commonly referred to as the “harm principle”,  which

states that  “the only purpose for which power can be rightfully exercised over any

member of  a civilized community,  against  his  will,  is  to  prevent  harm to others.”12

While the application of  the liberal  principles developed by Mill  extends to several

spheres, the sphere of free speech and expression was regarded to be particularly

important to him due to its connection with truth and development.13 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.”14

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.”15

 Dworkin conceptualizes democracy not just  as a formalised structure for  decision-

making but as a constitutional concept that allows the participation of all individuals,

11Supra note 6, at Page 68 12  Freedom of Speech, Stanford Encyclopaedia of Philosophy, available at https://plato.stanford.edu/entries/freedom- speech/#HarPriFreSpe  

13 Supra note 6, at Page 73. 14 Supra note 6, at Page 89. 15  Ronald Dworkin, “The Right to Ridicule”, New York Review of Books, 23 March 2006.

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including minorities with potentially unconventional views.16 This notion of democracy

is inconsistent with the idea of the state which restricts access to public debate, as

such  restrictions  would  fetter  the  understanding  of  democracy  as  a  continuous

process that can be shaped by all in society.17

Satire is a literary genre where “topical issues” are “held up to scorn by means of

ridicule or irony.”18 It is one of the most effective art forms revealing the absurdities,

hypocrisies and contradictions in so much of life. It has the unique ability to quickly

and clearly  make a point  and facilitate understanding in  ways that  other  forms of

communication and expression often do not.  However, we cannot ignore that like all

forms of speech and expression, satirical expression maybe restricted in accordance

with the restrictions envisaged under Article 19(2) of the Constitution. For example,

when  satire  targets  society’s  marginalized,  it  can  have  the  power  to  confirm and

strengthen people’s prejudices against the group in question, which only marginalizes

and disenfranchises them more.

On 9 April  1980,  James Baldwin  engaged in  a  conversation  with  Chinua  Achebe

(Conversations  with  James  Baldwin  edited  by  Fred  Stanley  and  Louis  H  Pratt).

Achebe posits that art has an abiding connect with society:

“Art has a social purpose [and] art belongs to the people. It’s not  something  that  is  hanging  out  there  that  has  no connection with the needs of man. And art is unashamedly, unembarrassingly, if there is such a word, social. It is political; it is economic. The total life of man is reflected in his art.”19

Albert  Camus  in  his  essays  titled  “Resistance,  Rebellion  and  Death”  makes  a

profound statement of the connect between art and freedom:

16 Eric Barendt, Freedom of Speech, (2nd Edition, OUP, 2005) at pgs 18-19 as cited in Aoife O'Reilly, In Defence of  Offence: Freedom of Expression, Offensive Speech, and the Approach of the European Court of Human Rights, 19  Trinity C.L. Rev. 234 (2016) .

17 Id. 18 Madhavi Goradia Divan, Facets of Media Law (Eastern Book Company 2013) at Page 154. 19 Conversations with James Baldwin, University Press of Mississippi, 30 January 1989, (Fred L. Standley and Louis  H. Pratt Eds).

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functioning  of  the  processes  of  popular  Government,  is possible.”

In  LIC v. Manubhai Shah,  23  a two-judge Bench of this Court adjudicated upon two

appeals which raised a common question of law concerning censorship of content by

state-controlled entities.  The first appeal related to an academic publication criticizing

Life Insurance Corporation of India’s (“LIC”) schemes. While the reply to the paper

had been published in the magazine run by the LIC, the rejoinder by the author was

not published. The second appeal arose from Doordarshan’s refusal to broadcast a

documentary film based on the Bhopal Gas Tragedy. The Court set aside the decision

of  both  these  state-controlled  entities,  noting  that  there  is  a  higher  burden  on

publications run by public funds to reject content only on valid grounds. Justice A M

Ahmadi (as the learned Chief Justice then was) held thus:

“8… Every citizen of this free country, therefore, has the right to  air  his  or  her  views  through  the  printing  and/or  the electronic media subject of course to permissible restrictions imposed  under  Article  19(2)  of  the  Constitution.  The  print media, the radio and the tiny screen play the role of public educators,  so  vital  to  the  growth  of  a  healthy  democracy. 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,24 the  petitioner  challenged the

confiscation of  books containing the writings of  Mao Zedong which were imported

23 (1992) 3 SCC 637 24 (1994) 5 SCC 550

15

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  because of  power  of  thought  and that  every  attempt  at thought control is  doomed to failure. An idea can never be killed.  Suppression  can  never  be  a  successful  permanent policy. Any surface serenity it  creates is a false one. It  will erupt one day. Our Constitution permits a free trade, if we can use the  expression,  in  ideas  and ideologies.  It  guarantees freedom  of  thought  and  expression  —  the  only  limitation being  a  law  in  terms  of  clause  (2)  of  Article  19  of  the Constitution.  Thought  control  is  alien  to  our  constitutional scheme...”

In S. Rangarajan v. P. Jagjivan Ram,25  a Division Bench of the Madras High Court

had revoked the U-Certificate (“suitable for all ages”) granted to a Tamil film Ore Oru

Gramathile dealing with the issue of reservation. Justice Jagannatha Shetty on behalf

of a three-judge Bench of this Court, emphasised upon the positive duty of the state to

protect the freedom of speech and expression thus:  

“We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If  the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression  cannot  be  suppressed  on  account  of  threat  of demonstration and processions or  threats of  violence.  That would  tantamount  to  negation  of  the  rule  of  law  and  a surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed  against  the  State.  The  State  cannot  plead  its inability  to  handle  the  hostile  audience  problem.  It  is  its obligatory  duty  to  prevent  it  and  protect  the  freedom  of expression.”

The Court  also  considered that  the film had been already been approved by two

Revising Committees:  

25 (1989) 2 SCC 574 16

“In this case,  two Revising Committees have approved the film. The members thereof come from different walks of life with  variegated  experiences.  They  represent  the  cross- section of the community. They have judged the film in the light of the objectives of the Act and the guidelines provided for the purpose. We do not think that there is anything wrong or contrary 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 India26, 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 debate on social, political and economic questions which in the long term endangers the stability  of  the  community  and maximises  the  source  and breeds for more likely revolution.”

In  KM  Shankarappa  v.  Union  of  India,27 the  vires  of  Section  6(1)  of  the

Cinematograph  Act,  1952  was  challenged.  The  section  enabled  the  Central

Government  to  pass any order  it  may deem fit  in  relation to  any film which was

26 (1996) 5 SCC 216 27 (2001) 1 SCC 582

17

pending before or decided by the Board or the Appellate Tribunal constituted under

the Act, giving the Central Government the power to review or revise the decisions of

the Board or the Tribunal. The Court rejected the argument that it was necessary for

the Central Government to retain such a power due to “public resentment” towards

certain films leading to law and order situations, after the film had been cleared by the

Board or Tribunal. A two-judge Bench of this Court held:

“We fail  to  understand the apprehension expressed by the learned counsel that there may be a law and order situation. Once an expert body has considered the impact of the film on the public and has cleared the film, it is no excuse to say that there may be a law and order situation.  It  is  for  the State Government  concerned  to  see  that  law  and  order  is maintained. In any democratic society there are bound to be divergent  views.  Merely  because  a  small  section  of  the society  has  a  different  view,  from  that  as  taken  by  the Tribunal,  and  choose  to  express  their  views  by  unlawful means would be no ground for  the executive to  review or revise a decision of the Tribunal.  In such a case, the clear duty of  the Government is to ensure that  law and order is maintained by taking appropriate actions against persons who choose to breach the law.”

In Director General, Directorate General of Doordarshan v. Anand Patwardhan,28

a  documentary  film  against  communal  violence  was  rejected  for  telecast  on

Doordarshan.  Part I was of the film had been granted ‘U’ certificate and Part II was

given ‘A’ certificate  by the Censor  Board.  Speaking for  a two-judge Bench of  this

Court, Justice A R Lakshmanan 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

28 (2006) 8 SCC 433 18

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  Maharashtra29, 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. In an order of the Bombay High Court granting a

stay on the notification, one of us (DY Chandrachud, J.) opined thus:

“6..the  strength  of  our  society  and  the  stability  of  the constitutional  structure  lies  in  its  ability  to  accommodate  a diversity  of  view  points  and  cultures.   The  maturity  of  a society committed to a democratic way of life lies as much as in its respect for those who conform as in its deference for those who do not. .. The Constitution preserves a healthy tradition of respect for the believer and the nonbeliever, the conservative as well as the  liberal,  those  on  the  core  as  well  as  those  on  the periphery; the agnostic and heretic.  The process of though control is alien to a set of democratic values.  It would indeed be a dangerous trend in society if the fundamental rights of those who espouse views which run contrary  to  the views held by the majority are to be trampled upon because they do not conform to the prevailing trend of thought.”

The Court held:

“15…the  Constitution  protects  the  creative  expression  of those engaged in human endeavour in the areas of fine art and culture. Article 19(1)(a) is, however, not the only article to which  the  protection  of  literary  activities  can  be

29 2001 Cri LJ 2203 19

traced...Coupled with this is the right of the wider society and the  community  to  know,  to  receive  information  and  be informed. The right to information, or the right to know is an intrinsic  facet  of  the  right  to  life  under  Article  21  of  the Constitution. An informed citizenry must have the means to receive news and information, and apart from this, to receive thoughts,  perceptions  and  ideas.  Those  perceptions  and viewpoints may not be in conformity with widely held social, economic  and  political  beliefs.  A  diversity  of  viewpoint promotes an ability on the part of the society to exercise a right  of  choice,  a  right  to  decide  and  the  right  to  form perceptions  which  lie  at  the  core  of  the  functioning  of  a democratic system…”

In F.A. Picture International v. Central Board of Film Certification, Mumbai,30 the

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, 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

30 AIR 2005 Bom 145 20

which  bear  a  resemblance  to  real  life  personalities.  The constitutional  protection  under  Article  19(1)(a)  that  a filmmaker enjoys is not conditioned on the premise that he must depict something which is not true to life. The choice is entirely  his.  Those  who  hold  important  positions  must have shoulders which are broad enough to accept with grace a critique of themselves. Critical appraisal  is the cornerstone of democracy and the power of the film as a medium of expression lies in its ability to contribute to that appraisal.”                                                                 (Emphasis supplied)

In Vishesh Verma v.  State  of  Bihar,31 a  Single  Judge  of  the  Patna  High  Court

quashed criminal proceedings instituted against persons involved in the production of

a television serial. It was alleged that the characters in the serial bore a resemblance

to the family of  a former Chief  Minister of Bihar and the serial  was an attempt to

defame them. Justice Navaniti Prasad Singh held thus:  

“9...a creative artist is free to project the picture of society or the political system or the person in politics in the manner he perceives. They can make pungent political satire of political leaders or system subject of course to decency, morality and Public Order. Legitimate creation by a creative artist cannot be gagged or suppressed on the ground of intolerance of a section of super sensitive people not used to hearing descent. This is the essence of democracy and we profess to live in a democratic  country.  People and more so,  Courts  (including Judicial Magistrates) should realize this.”

In  Maqbool Fida Hussain versus Rajkumar Pandey,32 (“Maqbool Fida Hussain”),

the Petitioner  was charged with obscenity  and hurting religious sentiments for  his

painting which depicted India as a nude woman with her hair flowing in the form of

Himalayas. Justice Sanjay Kishan Kaul (as he then was) upheld the artistic freedom of

the painter, noting thus:

“…Pluralism is the soul of democracy. The right to dissent is the hallmark of a democracy. In real democracy the dissenter must feel at home and ought not to be nervously looking over his shoulder fearing captivity or bodily harm or economic and

31 (2008) 56 (2) BLJR 1773 32 2008 Cri LJ 4107

21

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,33 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  versus  State  of  Tamil  Nadu,34 a  Tamil  novel  was  alleged  to

narrate  conventions  that  were  ‘non-existent  and defamatory’ to  the residents  of  a

certain area. A Writ Petition was filed before the Madras High Court, alleging that state

officials  had succumbed to the demands of extra-judicial  elements and forced the

author to withdraw unsold copies of the book and tender an unconditional apology.

Speaking for a Division Bench of the Madras High Court, Justice Sanjay Kishan Kaul

33 (2011) 8 SCC 372 34 2016 SCC OnLine Mad 5960

22

(as he then was) referred to the decision in Maqbool Fida Hussain (supra) and noted

that there was a “requirement of positive measures of protection to be taken”. Taking

into account the situation in the case at hand, the Court held thus:

“180… In such simmering circumstances, it was the bounden duty  of  the  State  Government  to  ensure  that  the  law  and order situation does not go out of hand, but that  ought not be achieved by placating anyone who seeks to take the law and order  in  his  own hand at  the  cost  of  the  person who has peacefully expressed his/her view…and the authorities really were  not  neutral  in  the  episode,  but  were  possibly  more concerned with the law and order scenario, as opposed to the freedom of expression of a single individual.

181...  We  may  also  say  that  the  State  and  the  police authorities would not be the best ones to judge such literary and cultural issues, which are best left to the wisdom of the specialists in the field and thereafter, if need be, the Courts.”

In Viacom 18 Media Pvt Ltd. Versus Union of India,35  a three-judge Bench of this

Court granted a stay on notifications and orders issued by some states banning the

exhibition  of  the  film  ‘Padmavat’  and  restrained  other  States  from issuing  similar

orders  and notifications,  after  the  Central  Board  of  Film Certification  had granted

certification. One of us (Justice Dipak Misra) (as the learned Chief Justice then was)

held thus:

“15…  Once  the  parliamentary  legislation  confers  the responsibility  and the  power  on a statutory  Board  and the Board  grants  certification,  non-exhibition  of  the  film by  the States  would  be  contrary  to  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

35 (2018) 1 SCC 671 23

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…36  

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 decide the forms of expression that these “subjects” can

access and be “trusted with having exposure to.”37

16   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  Joint  Commissioner  was  not

unmindful of the fact that the film had been slated for release within a few days of his

communication in theatres across the city of Kolkata and the State.  If there was any

doubt whatever over the entitlement of the producers to have the film exhibited, it was

laid to rest when the producers immediately informed him of the film being CBFC

certified. The statutory authority to certify a film for public exhibition is vested in the

CBFC under the provisions of the Cinematograph Act 1952. Sections 4, 5, 5A and 5B

provided  a  statutory  code  for  the  examination  and  certification  of  films  for  public

36 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

37 Gautam Bhatia, Offend, Shock or Disturb: Free Speech under the Indian Constitution (Oxford University Press  2016), at Page 183

24

exhibition. Sub-section (1) of Section 5B38  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 639 of the West

Bengal  Cinemas (Regulation)  Act  1954)  and  the  Central  Act  (Section  1340 of  the

Cinematograph Act 1952) provide  the conditions in which the state government, or as

the  case may be,  the central  government  (or  a  local  authority)  may suspend the

exhibition of a film, where it is likely to cause a breach of the peace.  Any order which

is issued under the terms of these statutory provisions is subject to statutory control

as well as to the supervisory jurisdiction of the High Courts under Article 226 or, as the

case may be, the original jurisdiction of this Court under Article 32. These statutes are

to be interpreted in the rule of law framework.  An excess or abuse of statutory power

is amenable to constitutional guarantees which protect the citizen against arbitrary

38  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.   

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 :

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.

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.    

25

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  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, the right itself and its

guarantee under the Constitution would be rendered illusory. The true purpose of art,

as manifest in its myriad forms, is to question and provoke. Art in an elemental sense

reflects a human urge to question the assumptions on which societal values may be

founded.  In questioning prevailing social values and popular cultures, every art form

seeks to espouse a vision. Underlying the vision of the artist is a desire to find a new

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meaning for existence.  The artist, in an effort to do so, is entitled to the fullest liberty

and freedom to critique and criticize.  Satire and irony are willing allies of the quest to

entertain while at the same time to lead to self-reflection. We find in the foibles of

others an image of our own lives. Our experiences provide meaning to our existence.

Art is as much for the mainstream as it is for the margins.  The Constitution protects

the  ability  of  every  individual  citizen  to  believe  as  much  as  to  communicate,  to

conceptualize as much as to share. Public power must be conscious of the fact that

ours  is  a  democracy  simply  because  the  Constitution  recognizes  the  inalienable

freedoms of every citizen. Power has been entrusted to the state by the people under

a written Constitution. The state holds it in trust and its exercise is accountable to the

people.  The state does not entrust freedoms to the people: the freedoms which the

Constitution  recognizes  are  inseparable  from  our  existence  as  human  beings.

Freedom is the defining feature of human existence.  Freedoms are not subject to

power.  Public power is assigned by the people to government.  Ours is a controlled

Constitution,  a  Constitution  which  recognizes  the  fullest  element  of  liberty  and

freedom and of the answerability of power to freedom. The views of the writer of a

play, the metre of a poet or the sketches of a cartoonist may not be palatable 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

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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

‘interest of the guests’.  We have no manner of doubt that this was a clear abuse of

public power.  The police are entrusted with enforcing law.  In the present case, the

West  Bengal  police  have  overreached  their  statutory  powers  and  have  become

instruments  in  a  concerted  attempt  to  silence  speech,  suborn  views  critical  of

prevailing cultures and threaten law abiding citizens into submission.

18 The freedoms which are guaranteed by Article 19 are universal. Article 19(1)

stipulates  that  all  citizens  shall  have  the  freedoms  which  it  recognises.  Political

freedoms impose a restraining influence on the state by carving out an area in which

the  state  shall  not  interfere.   Hence,  these  freedoms  are  perceived  to  impose

obligations of restraint on the state. But, apart from imposing ‘negative’ restraints on

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the state these freedoms impose a positive mandate as well.  In its capacity as a

public authority enforcing the rule of  law, the state must ensure that conditions in

which these freedoms flourish  are maintained.  In  the space reserved for  the free

exercise of speech and expression, the state cannot look askance when organized

interests threaten the existence of freedom.  The state is duty bound to ensure the

prevalence  of  conditions  in  which  of  those  freedoms  can  be  exercised.   The

instruments of the state must be utilized to effectuate the exercise of freedom. When

organized interests threaten the properties of theatre owners or the viewing audience

with reprisals, it is the plain duty of the state to ensure that speech is not silenced by

the fear of the mob.  Unless we were to read a positive obligation on the state to

create and maintain conditions in which the freedoms guaranteed by the Constitution

can be exercised, there is a real danger that art and literature would become victims

of  intolerance.   In  the  present  case,  we are  of  the view that  there  has been an

unconstitutional attempt to invade the fundamental rights of the producers, the actors

and the audience.  Worse still, by making an example out of them, there has been an

attempt to silence criticism and critique.  Others who embark upon a similar venture

would  be subject  to  the chilling  effect  of  ‘similar  misadventures’.   This  cannot  be

countenanced in a free society. Freedom is not a supplicant to power.

19 This leads us to the issue of relief.  By the orders of this Court dated 15 March

2019 and 25 March 2019 several directions were issued to the state of West Bengal,

the Principal Secretary, Home and the Director General of Police.  We maintain and

confirm the directions which have been issued.  We issue a Mandamus restraining the

state from taking recourse to any form of extra constitutional means to prevent the

lawful screening of the feature film  Bhobishyoter Bhoot.  The state shall specifically

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ensure that the properties of the theatre owners who exhibit the film are duly protected

as are the viewers against attempts on their safety.   

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.  

     ………..……...……...….......……........J.                                                                       [Dr Dhananjaya Y Chandrachud]

    …..…..…..…....……………….…........J.                                [Hemant Gupta]

 New Delhi;  April 11, 2019

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