The Leaflet

| @theleaflet_in | April 11,2019

A two-judge bench of the Supreme Court, comprising Justices D Y Chandrachud and Hemant Gupta has come down heavily on the West Bengal government for failing to ensure the smooth screening of a film ‘Bhobishyoter Bhoot’, directed by Anik Dutta, pegged as a political satire.

‘Bhobishyoter Bhoot’ is a social and political satire about ghosts who wish to make themselves relevant in the future by rescuing the marginalised and the obsolete. The film mourns the living dead.

It laments the replacement of cabaret with “item numbers”. In the same vein the film bemoans the decline of typists and horologists of yesteryears with present day digital alternatives.

 

 

Taking a strong stand on the muzzling of artistic freedom by pulling off the film from theatres, the film producers, according to the Court, suffered a violation of their fundamental right to free speech and expression and of their right to pursue a lawful business. Consequently the Court directed the West Bengal Government to pay compensation of Rs 20 lakhs to the film producers within a period of one month.

“When organised 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”, Justice D Y Chandrachud who wrote the judgment for himself and Justice Hemant Gupta, said.

“Contemporary events reveal that there is 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 playwright, 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 Supreme Court held.

“The true purpose of art, as manifested 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 meaning for existence. The artist, in an effort to do so, is entitled to the fullest liberty and freedom to critique and criticise”, the Apex Court said.

 

The inalienable freedom of the citizen

 

The individual citizen has the protection of the Constitution to believe as much as to communicate, to conceptualise and to share. Public power, the court said, must be conscious of the fact that ours is a democracy simply because the Constitution recognises the inalienable freedoms of every citizen.

“Commitment to free speech involves protecting speech that is palatable as well as speech that we do not want to hear, Justice Chandrachud said. 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. This principle is at the heart of democracy, a basic human right, and its protection is a mark of a civilised and tolerant society”, he said.

Indibily Creative Pvt Ltd, the producer of the film, in its petition, had alleged that the State of West Bengal was misusing police power and acting as a “super-censor”.

The producer claimed that such obstruction to the exhibition of the movie violated its rights, as it had duly obtained a UA certificate for the movie from the Central Board of Film Certification (CBFC).

As an interim measure, the Supreme Court had on March 25, 2019 directed the Principal Secretary, Department of Home, Government of West Bengal and the Director General of Police to immediately issue communications to all the theatres where the film was being originally screened, intimating them that there was no ban on the screening of the film.

 

Constitutional protections against abuse of statutory power

 

The statutory authority to certify a film for public exhibition is vested in the Central Board of Film Certification (CBFC) under the provisions of the Cinematograph Act 1952.

 

 

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,” The Supreme Court said.

 

An unconstitutional assault on fundamental rights

 

In the present case, the Court found that there had 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 had 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,” the Supreme Court said.

The Court has also imposed a costs of Rs 1 lakh to be paid the petitioners.

 

Read the Judgment.

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