The petitioners alleged the Government of West Bengal and the police
authorities of misusing their powers to abruptly remove the film 'Bhobishyoter
Bhoot' from theatres (the day after it released). The case explains that an
unofficial ban imposed through extrajudicial means infringes upon the Right to
Freedom of Speech and Expression that is guaranteed under section 19(1)(a) under
the Indian Constitution.
The case deals with the right of the producers to screen a film on receiving an
appropriate certification from the Central Board of Film Certification as well
as the corresponding duty of the State to protect Fundamental rights of the
Indibility Creative Pvt Ltd & Ors v. Govt of West Bengal and Ors
Court: Supreme Court of India ; Citation: Writ Petition (Civil) 306 of 2019 ;
Delivered On: April 11th, 2019 ; Bench: Dr. D. Y. Chandrachud, Hemant Gupta, J.J.
- Whether the State was empowered to cast a blanket ban on a film that had
been duly certified by the Central Board of Film Certification?
- Did the State resort to unconstitutional means to stop the screening of
the film which in turn deprived the petitioners of their fundamental rights?
(Mainly, the Right to Freedom of Speech and Expression in this case)
The Judgement referred to the following sections of the relevant laws in
deciding upon the issued framed
- Subsection (1) of Section 5B of The Cinematograph Act,1952- This
section lists certain cases in which a film shall not receive certification
from the CBFC
- Section 6 of the West Bengal Cinemas (Regulation) Act 1954 and
Section 13 of the Cinematograph Act 1952- These sections grant power to
the state or the central government to suspend the exhibition of films
provided that the due procedure laid down by the respective sections is
- Though the petitioners claim that their Fundamental rights guaranteed
under Articles 14, 19(1)(a), 19(1)(g) and 21 of the Constitution are
violated; the Judgement goes to great depths to examine the true essence of
the Right to Freedom of Speech and Expression.
As to issue 1, the Supreme Court recognized that the Central Board of Film
Certification was an expert body with respect to the 'public exhibition of films
in India' and had the exclusive authority to certify or deny certification for
the public viewing of films. The Centre or the state government are not vested
with the power to halt such public exhibition except in certain cases where
'revisional powers' (mentioned in the Cinematograph Act, 1952) can be exercised.
The constitutionality of section 6(1) which granted the revisional powers to the
state was challenged in KM Shankarappa v. Union of India.
To clarify, revisional powers meant that the state had the power to review the
certification of a film, which meant that the state could interfere with the
decisions given by the Central Board of Film Certification. The Indibility
judgement relied upon the reasoning established in the landmark Shankarappa
judgement: "Once an expert body (CBFC) has considered the impact of the film on
the public and has cleared the film...it is for the state government concerned
to see that law and order is maintained."
This precedent was upheld in cases like Prakash Jha v. Union of India
2011 and Viacom 18 Media Pvt Ltd v. Union of India, 2018 where the Supreme Court
held that the state or its functionaries could not ban the screening of a film
once it had been approved by the CBFC. Both the judgements imply that the CBFC
has supreme authority over the certification of films and the executive cannot
meddle with the former's decisions.
Apart from the revisional powers under section 6, it should also be noted that
the executive is empowered under section 13 of the Cinematograph Act to suspend
the exhibition of films if it is likely to cause a breach of public peace.
However, in the given case, the Government of West Bengal duly informed the
court that it had not resorted to Section 6 of the West Bengal Cinemas
(Regulation) Act 1954 or Section 13 of the Cinematograph Act 1952, which implied
that the State did not carry any official procedure so as to suspend the film.
From the evidence submitted to the court by the petitioners, it was held that
the West Bengal Government had resorted to unconstitutional means to prohibit
the film screening. Such unlawful interference led to the violation of the
freedom of speech and expression of the petitioners.
With respect to issue 2, the court felt the need to clarify what constitutes
'the right to freedom of speech and expression' for which it includes
philosophical and legal explanations. The judgement gives an over-arching view
as to how sacred free speech is in a democracy and the repercussions of
promoting or curbing it. The wide variety of moral arguments ranging from those
of John Stuart Mill to Simone De Beauvoir can be summarized as follows
- Free speech is intrinsic to human life. Free speech paves path for
creative ideas and innovation which help society to flourish.
- Free speech allows participation of all individuals, which creates laws
and policies democratically.
- The state has a duty to protect free speech even when it may despise
what is being said.
- Curbing free speech is an injury not to a single individual, but to the
- There is an inseparable link between free speech and art. The purpose of
art cannot be realized without the freedom of speech and expression.
The bench explains the vitality of this fundamental right through several
constitutional precedents. These can be summed up as follows:
The court held that the state violated the petitioners' fundamental rights and
hence is liable to pay damages of 20 lakhs and an additional sum of 1 lakh for
the legal proceedings. The court pronounces that Freedom of speech is an
indivisible aspect of every citizen. Citizens have a right to express their
consenting or dissenting views through speech, printing, or electronic media.
Free speech not only promotes tolerance, but it also provides for public
education and awareness.
Similarly, it allows the expression of minority views in a democracy. If we
remove the element of free speech, the debates over social, economic, and
political issues will come to a dead end, which will hamper the progress of the
nation. If a citizen is criticizing the government- directly or indirectly
through sarcastic comments or satires (as seen in case of the movie in
question), he/she is exercising his right which falls within the limits of
19(1)(a). Therefore, suppressing free speech is a "death knell to democracy"
and any such attempt is a deviation from constitutional values.
It is true that such freedom is not absolute and is subjected to the
restrictions set out in article 19(2). The court relies on S. Rangarajan v.
P. Jagjivan Ram and reiterates that the state cannot execute a blanket ban of a
film on the mere account of threat to social unrest or violence. Taking away of
such freedom must be justified "on the anvil of necessity and not the quicksand
of convenience or expediency."
Hence, the state has a duty to not trample on the fundamental rights of its
citizens, but to uphold them if they are subjected to any threat. In the case of
movies or broadcast media, it is the duty of the police to ensure that the
audience does not break into unrest or create disturbances to the social
The fundamental rights create a positive mandate on the state to ensure that the
conditions in which these freedoms flourish are maintained. Therefore, the
police and the state functionaries should strive to maintain pluralism and
ensure the smooth dissemination of controversial views (that fall within the
ambit of 19(1)(a)).
The judgement also elaborately discusses the role of art in human society and
how art (in any of its forms) embedded with the freedom of speech and
expression. Similarly, it highlights that the state functionaries do not have
unrestrained powers of their own but derive their powers and duties by the
Constitution. From the facts of the case, the court holds that the police have
stepped beyond their constitutional powers and have taken up a concerted effort
to silence free speech. Thus, the court orders the state authorities to ensure
that the film is screened across Kolkata and the audience, theatre owners and
the filmmakers are duly protected.
Indibility Creative Pvt Ltd v. Govt of West Bengal
is an avant-garde
Judgement that propounds the modern view of liberalism. It shows the
inter-relation between two distinct yet inseparable areas of human civilization:
Constitutional guarantees and Art as a manifestation of freedom.
This judgement also employs the positive law of the land I.e., the constitution
as well as draws from the principles of natural justice to deliver an informed
decision. It provides for the damages in monetary terms and by ordering the
unhindered film screening.
Likewise, it looks at the necessity of upholding free speech through various
angles: whether it is for individual autonomy, wellbeing of the minorities,
social progress, or upholding democracy. The judgement is a fine example of the
concept of 'constitutionalism' and continues to be an important precedent for
future cases of violation of free speech and media rights.
Written By: Dhruva Upadhye,
- 5B Principles for guidance in certifying films:
- 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.
- 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.
- Section 6 : Power of State Government or District Magistrate to suspend
exhibition of films in certain cases:
- 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
- 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
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.
- 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.
- Section 13: Power of Central Government or local authority to suspend
exhibition of films in certain cases. 13.
- 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.
- 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.
- Protection of certain rights regarding freedom of speech etc
- All citizens shall have the right
- to freedom of speech and expression;
- to assemble peaceably and without arms;
- to form associations or unions;
- to move freely throughout the territory of India;
- to reside and settle in any part of the territory of India; and
- to practise any profession, or to carry on any occupation, trade, or
- LIC v. Manubhai Shah (1992) 3 SCC 637
- Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of
any existing law, or prevent the State from making any law, in so far as
such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub clause in 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 in relation to contempt
of court, defamation or incitement to an offence.
- S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574
2nd year law student at Jindal Global Law