Indibility Creative Pvt Ltd v. Govt of West Bengal - Global Freedom of Expression

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• However, a few days prior to the release, the Petitioner No. 2 (producer) received a phone call from the Kolkata police on 11 February 2019 and thereafter, a letter, asking for an advance screening of the film for senior officials. The communication stated that the police had received intelligence reports that the film could cause “political law and order issues.

• the film was already duly certified and it was settled law that after the approval of the Central Board of Film Certification, it wasn’t open for any other authority to obstruct the screening of the film.

• the writ was filed, the film was pulled down by a majority of the theatres and out of forty eight exhibitors, only two continued to display the film

• e “directed by the authorities to discontinue screening” of the film “keeping in mind the interest of the guests”.

• The Petitioners therefore, averred that the State had sought to ban the film through indirect means and without the authority of law.

• it has not taken recourse to its powers either under the West Bengal Cinemas (Regulation) Act 1954 or the Cinematograph Act 1952 and therefore, the Writ Petition was without basis.

• the irreparable loss caused due to interference with the screening of the film as well as the State’s positive obligation to protect freedom of speech and passed significant interim order

• noted the statement of the counsel for the State of West Bengal that there was no formal ban on the film. However, considering the communication dated 11 February 2019 was an extra-constitutional exercise of power,

• communications to each of the exhibitors reiterating that there was no ban on the film and that the State will provide adequate security to all exhibitors who resume the screening of the film.

• he main issue before the court was whether the the state and its agencies had resorted to “extra constitutional means to abrogate the fundamental rights of the producer, director and the viewers.

• . Satire, it noted, is a powerful form of artistic expression able to quickly reveal the “absurdities, hypocrisies, and contradictions”

• The Court stated that “[t]he 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.”

• indirectly interfere with the screening of the film, outside the scope of statutory powers that governed the exercise of police powers. The Court also recognized the particular harm of such indirect interference, characterized as ‘shadow banning’- statutory exercise of power allowed for the right to judicial review under Article 32 of the Constitution;

• he Court additionally noted the potential chilling effect such arbitrary restrictions could have.

• State to ensure adequate protection to the release of the film. It was considered necessary to read ‘positive obligations’ into the right to freedom of speech and expression in order to ensure the meaningful exercise of this right.

• Rangarajan v. P. Jagjivan Ram to establish that “[i]f the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence.” [para. 14]

• the Central Government did not have the power to “review or revise” those decisions based on concerns about potential “public resentment” towards the film and that it was the Government’s responsibility to ensure law and order is maintain

• t “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.”  In the present case, the Court found 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 has been an attempt to silence criticism and critique.”

• State’s interference with the freedom of speech and expression, both in commission and omission, the Court held that there was a violation

• The film was released on 15 February 2019. On 16 February 2019, the film was simultaneously removed from theatres by an overwhelming number of exhibitors and tickets were refunded. Allegedly, this was due to instructions by “higher authorities.”