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2019 (4) TMI 2113 - SC - Indian LawsMisuse of police power and acting as a 'super-censor' sitting atop the CBFC - 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 - utterly unlawful obstruction of the public exhibition of their Bengali feature film. HELD THAT - 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 exhibition. An excess or abuse of statutory power is 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 - 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. 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. 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 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. 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 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. Mandamus issued 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 ensure that the properties of the theatre owners who exhibit the film are duly protected as are the viewers against attempts on their safety - 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. Petition allowed.
Issues Involved:
1. Unlawful obstruction of the public exhibition of the film "Bhobishyoter Bhoot" by the State of West Bengal. 2. Misuse of police power and acting as a 'super-censor' by the State of West Bengal. 3. Violation of fundamental rights guaranteed under Articles 14, 19(1)(a), 19(1)(g), and 21 of the Indian Constitution. 4. The role and authority of the Central Board of Film Certification (CBFC) in certifying films for public exhibition. 5. The duty of the State to protect the freedom of speech and expression. 6. The legal implications of extra-constitutional actions by the State and its agencies. 7. The entitlement to compensation for the violation of fundamental rights. Detailed Analysis: 1. Unlawful Obstruction of Film Exhibition: The Petitioners alleged that the State of West Bengal, through its Department of Home and the Kolkata Police, unlawfully obstructed the public exhibition of their film "Bhobishyoter Bhoot." The film, which had received a UA certification from the CBFC, was abruptly pulled off the screens by exhibitors without any formal communication from the producers. The Court noted that the film was removed from the majority of theatres in Kolkata and West Bengal, and the exhibitors cited instructions from unnamed "higher authorities" to cease screening the film. 2. Misuse of Police Power: The Petitioners contended that the State of West Bengal was misusing police power by acting as a 'super-censor' over the CBFC. The Kolkata Police had demanded a private screening of the film for senior officials, citing potential law and order issues. The Court observed that the Joint Commissioner of Police acted beyond his legitimate authority and that the State's interference was not justified, as the film had already been certified by the CBFC. 3. Violation of Fundamental Rights: The Petitioners argued that the State's actions violated their fundamental rights under Articles 14 (equality before the law), 19(1)(a) (freedom of speech and expression), 19(1)(g) (right to practice any profession), and 21 (right to life and personal liberty) of the Indian Constitution. The Court emphasized that the freedom of speech and expression is a cornerstone of democracy and that the State has a duty to protect these rights against extra-constitutional restraints. 4. Role and Authority of CBFC: The Court reiterated that the CBFC is the sole authority empowered to certify films for public exhibition under the Cinematograph Act. Once a film is certified by the CBFC, no other authority, including the State, can impose additional censorship or obstruct its exhibition. The Court cited previous judgments, including Prakash Jha Productions v. Union of India and Viacom 18 Media Pvt. Ltd. v. Union of India, to support this position. 5. Duty of the State to Protect Freedom of Speech: The Court highlighted the State's positive obligation to create and maintain conditions in which the freedoms guaranteed by the Constitution can be exercised. The State must ensure that organized interests do not threaten the exercise of free speech and expression. The Court criticized the State of West Bengal for failing to protect the Petitioners' rights and for using extra-constitutional means to silence dissent. 6. Legal Implications of Extra-Constitutional Actions: The Court condemned the State's use of extra-constitutional methods to obstruct the film's exhibition. It noted that such actions are insidious and pose a grave danger to personal liberty and free speech. The Court emphasized that all exercises of authority must be within the framework of the law and subject to judicial oversight. 7. Entitlement to Compensation: The Court recognized that the Petitioners had suffered a violation of their fundamental rights due to the State's actions. It ordered the Respondents to pay Rs. 20 lakhs as compensation to the Petitioners within one month. Additionally, the Court awarded Rs. 1 lakh in costs to the Petitioners. Conclusion: The Supreme Court allowed the Writ Petition, confirming the interim directions issued earlier and restraining the State from using extra-constitutional means to prevent the lawful screening of the film "Bhobishyoter Bhoot." The Court directed the State to ensure the protection of theatre properties and the safety of viewers. It also awarded compensation and costs to the Petitioners for the violation of their fundamental rights.
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