In this landmark judgment, the Hon'ble Supreme Court held that:
1. The freedom of speech couldn’t be gagged by fear of mob and it is the duty of the state to ensure the same.
2. The right to information or the right to know is an intrinsic facet of the right to life under Article 21 of the Constitution.
3. The Court also considered the issue of compensation as public law remedy for violation of these rights.
Here is the entire case study:
Indibility Creative pvt ltd v Government
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INDIBILITY CREATIVE PVT. LTD. AND ORS. V. GOVERNMENT OF WEST BENGAL AND ORS.
COURT: Supreme Court of India
BENCH: Justice Dr. Dhananjaya Y. Chandrachud and Justice Hemant Gupta
DECIDED ON: 11.04.2019
Citation: 2019 SCC Online SC 564
This is a classic case of misuse of powers by the state machinery causing infringement of fundamental rights guaranteed under Article 19(1)(a), 19(1)(g) and 21 of the producer, actors and viewers of the movie. The case arises when the State of West Bengal imposed shadow ban on a film Bhobishyoter Bhoot (‘Future Ghosts’), a political satire, which was duly certified for public exhibition. While passing the said judgment the Supreme Court held that freedom of speech couldn’t be gagged by fear of mob and it is the duty of the state to ensure the same. The Court further held that the state failed to discharge its positive obligation to protect the freedom of speech and expression. In this unique case the Court come down heavily on the state and imposed fine over the state for violation of fundamental rights.
FACTS OF THE CASE
A Bengali film, Bhobishyoter Bhoot, produced in order to uplift the condition of Bengali films. The film was scheduled to release in Kolkata and other districts of West Bengal on 15th February, 2019. The film was a satire on the political conditions in contemporary India, about ghosts who aim to find relevance through rescuing the marginalized and the obsolete people. It received the certificate for public exhibition on 19 November 2018 from Central Board of Film Certification (CBFC).
11 February 2019 - Four days preceding to the release of the movie, the producer (Petitioner No. 2) received a phone call from the Kolkata police asking for an advance screening of the film for senior officials. The communication declared that the police have received intelligence reports that the film could cause “political law and order issues.”
12 February 2019 - The Petitioner No. 2 responded the phone call with a letter stating that the Central Board of Film Certification has already certified the film. The Petitioner in the letter further stated that it is a settled law that once the competent authority approves a movie it is not open for any other authority to obstruct the screening of the film. Subsequently the film was released on 15 February 2019.
16 February 2019 - The film was abruptly removed from theatres by a large number of exhibitors and the tickets were also refunded. Allegedly, this was due to instructions by “higher authorities.” The Petitioners therefore filed a writ petition before the Supreme Court alleging violation of their fundamental rights.
By the time the petitioners filed a writ only two exhibitors displayed their film and one exhibitor, INOX Leisure Ltd eventually informed the producers that they were “directed by the authorities to discontinue screening” of the film “keeping in mind the interest of the guests”. The Petitioners therefore, contended that the State had sought to ban the film through indirect means and without the authority of law.
The main issue before the court was whether the state and its agencies had resorted to “extra constitutional means to abrogate the fundamental rights of the producer, director and the viewers. The Petitioners, therefore, averred that the State in banning the film through indirect means and without the authority of law, had violated their fundamental right to freedom of speech and expression and carrying a lawful trade of their choice under article 19(1)(a), 19(1)(g) and article 21 of the Indian Constitution.
The Petitioners contended that the film had already received certification for public exhibition by CBFC and hence the impediment caused by the state of West Bengal through its Home Department and the Kolkata police has amounted to a violation of the rule of law. They also argued that such acts of hindrance to the public exhibition of the film amounts to a subversion of the law declared by the Court according to which a film having been cleared by the CBFC cannot be subjected to censorship by the state nor can the state raise any issue of law and order to restrain its exhibition.
It was further contended by the Petitioners that 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. CBFC is an expert body entrusted with the statutory power under the Cinematograph Act to determine whether a film should be certified for public viewing and by virtue of Cinematograph Act, CBFC is the sole repository of that power. They further contended that the extra constitutional method adopted by the state and its agencies blatantly violates the fundamental rights of the petitioners under Article 19(1)(a), 19(1)(g) and Article 21 of the Indian Constitution.
The Respondents on the other hand contended that they expected a threat to the law and order in the society because of such a political satire. The respondents also explained the Court that they have complied with the earlier orders of the court in pursuance of the directions. 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. They also informed the court that the film was being displayed by ten exhibitors at that point of time.
However, it was contended by the petitioners that all the theatres screening their movie were outside Kolkata
The Court while passing the judgment in favour of the Petitioner highlighted the importance of the freedom of expression in a democracy by referring to the philosophical and literary writings, citing Camus, and Simone de Beauvoir among many others. Court also explained how freedom of speech and expression is not conditioned upon the acceptance of people unable to take any criticism. The court also explained that the Constitution is meant to protect the creative expression of those engaged in human endeavor in the areas of fine art and culture. Coupled with this is also the right of the entire 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. Hence, the authorities hindering the screening of the film violated both the right of freedom of expression as well as the public’s right of being informed.
The court therefore declared that the State interfered with the freedom of speech and expression, both in commission and omission, and held that there was indeed a violation of the rights of the Petitioners under Article 19(1)(a) of the Constitution. The Court also considered the issue of compensation as public law remedy for violation of these rights and directed the Respondents to pay compensation of Rs. 20 lakhs for violation of fundamental rights and Rs. 1 lakh as legal costs.
 Right to freedom of speech and expression.  Right to practice any profession or to carry on any occupation, trade or business  Protection of life and personal liberty.  K.M. Shankarappa v. Union of India, ILR 1990 KAR 4082.  Prakash Jha Productions v. Union of India, (2011) 8 SCC 372.  Albert Camus and Justin O’Brien, Resistence, Rebellion, and Death, Random House, New York (1960).  Simone De Beauvoir, The Ethics of Ambiguity, Bernard Frechtman (Translator).