State cannot take away liberties under a mere apprehension of a law and order situation; must create atmosphere conducive to freedom

Asmita Kuvalekar | Government Law College, Mumbai | 19^th April 2020. 

INDIBILITY CREATIVE PVT LTD AND ORS VS. GOVT OF WEST BENGAL AND ORS (WRIT PETITION (CIVIL) NO 306 OF 2019) 

FACTS OF THE CASE: 

The Petitioner produced a Bengali film (a socio-political satire) titled Bhobishyoter Bhoot, holding a U/A certification. Four days before its release, the Director of the film received a call saying the State Intelligence Unit of the Kolkata Police wanted a private screening for some of its senior officials as it was concerned that the film could lead to a grave law and order situation if not properly censored. It wanted to ensure itself of the correctness of the content so as to uphold public safety. Since the film had already been duly certified and the Kolkata Police had no power to demand a special private screening, the same was not done by the Petitioners. Subsequently, within 24 hours of its release in 48 theatres, major distributors like INOX, PVR and Cinepolis abruptly suspended the screening without any explanation or communication with the Petitioners.

Further, tickets for the film were reimbursed to the public. Desperate to understand what caused this intervention, the Petitioners requested more information from all the cinema halls as well as the local police. No one responded to their queries but eventually, INOX Leisure Ltd. confided that unnamed “higher authorities” asked them to do so. Other exhibitors shared that various station-house officers from local police stations visited them threatening to destroy their cinema halls if the orders were not complied with. 

The Supreme Court in this case was called upon to issue Mandamus to the concerned authorities so as to stop their obstruction of the free exhibition of the film and related reliefs. To that effect, the Court expertly toes the fine line between freedom of speech and expression and its limitations as envisaged holistically under Article 19 of the Indian Constitution. 

ISSUE: 

1. Whether the Government was justified in its actions, regard being had to the fundamental right of free speech and expression under Article 19 and its accompanying reasonable restrictions? 

JUDGEMENT: 

To understand the complex dynamic of freedom of speech and expression and reasonable restrictions, this judgement closely evaluated the ideological, philosophical and moral origins of free speech as enumerated in celebrated historic writings. In doing so, the Court highlighted the true nature of this right. It enumerated that, “Commitment to free speech involves protecting speech that is palatable as well as speech that we do not want to hear.” Therefore, any true democratic polity would allow not just the opinions that are in line with its thinking but also those that are in total opposition. 

Any civilized society is characterized by its support of conflicting ideologies. One may not agree with something that is said or done but such disagreement does not take away the other’s right to continue doing what he deems best. Setting aside any doubts to the contrary, this judgement once again declared that free speech is crucial and inalienable to a democratic structure.

The Court clarified its stand by reiterating the principle of harm built into the liberties envisaged by Article 19. Thus, there can be no question that even fundamental rights are not absolute in nature, they can be curtailed to prevent harm to others. But in S. Rangarajan v P. Jagjivan Ram¹, the Apex Court held that limitations on freedom of speech should be strictly and narrowly construed as per Article 19 (2). Moreover, mere criticism of a Government and its policies can never be good ground to subjugate public liberty. Limitations are to be used out of necessity, not intolerance of criticism. 

To that effect, in the present circumstances, it was seen that satire is a literary genre that brings attention to socio-political issues by ridiculing them. It has in the past successfully drawn people’s attention towards many a pertinent cause and continues to flourish as an artistic style of expression. Citing LIC V Manubhai Shah², it was explained that citizens have every right to express themselves through any type of media. Effectively, artists are also protected and their work cannot be made subservient to a popular, majoritarian thought process. Such liberty advances public dialogue on socially relevant topics, which in turn is essential for the upkeep of a thriving democratic structure. In fact, any attempt to gag free speech should be condemned; for rigidity of thought and shackles on speech pave the way for an autocratic rule that turns a deaf ear to its retractors. 

With respect to the concern for law and order raised by the Respondents, the Court referred to its decision in K. M Shankarappa v Union of India³ where it was held that once an expert authority has considered all possible effects of a film on the society and given a certification, the Government’s interference is wholly unnecessary. It is rather the Government’s responsibility to ensure that society runs peacefully. But this responsibility cannot be carried out prospectively, fearing a future breach. All executive actions are regulated by rule of law and no authority can overturn that boundary. 

Additionally, the Court held that artistic rights do not originate solely through Article 19. As per the decision in Anant Chintamani Dighe v State of Maharashtra⁴, people’s right to know and the right to information is inherent in Article 21, the golden Constitutional component that guarantees right to life and personal liberty. Thus art and artists’ rights are to be upheld not only for the purposes of Article 19 but also for those of Article 21. 

Lastly, sounding a death knell to the Government’s stance of morality and public welfare, the Supreme Court declared in no uncertain terms that Governments should leave the citizens to their own decisions and have no authority to decide what kind of content is fit for the citizens and what isn’t. Moreover, the police in a democratic society like India cannot function as “self-appointed guardians of public morality”. Authority is shaped by rule of law, not personal opinions or ideology of the individual wielding it. The police therefore cannot voluntarily make themselves party to a unilateral, pre-meditated attempt to suppress free speech as seen in this case. 

The limitations set out in Article 19 (2) impose negative restraints on the State but they also imply a positive mandate to create an atmosphere conducive for the enjoyment of free speech and expression. It is therefore the State’s duty to ensure that people can be free. In its own words, “The instruments of the State must be utilized to effectuate the exercise of freedom.” Furthermore, statutory authority to certify films for an audience lies with the CBFC as per the Cinematograph Act, 1952 and not the local police. 

As such, the Respondents’ actions were held to be unconstitutional and in complete derogation of the high ideals envisioned by Article 19 and 21. The Court recognized the wrongful attempt to suppress criticism and enunciated that the same was not in line with India’s Constitutional values. A Mandamus to restrain obstruction of the film’s exhibition was duly issued.

1. (1989) 2 SCC 574
2. (1992) 3 SCC 637
3. (2001) 1 SCC 582 
4. 2001 Cri LJ 2203