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Indibility Creative Pvt. Ltd. vs. Govt. of West Bengal

FACTS

In the case of Indibility Creative Pvt. Ltd. v. Govt. of West Bengal, [i], a movie (Bhobishyot Bhoot) was all set to release in the State of West Bengal (within and outside Kolkata) on February 15th 2019. On February 11th 2019, the directors and producers of the movie received a letter from the Joint Commissioner of Police (Intelligence) in the Special Branch which asked the producers to arrange a private screening for a few senior officials before February 12th 2019, as they have received a letter which raises concerns about law & order in the State post the release of this movie. The directors and producers of movie replied that the said concern was already dealt by the CBFC and it got the U/A. There was no word from the executive post this reply.


The movie got released on February 15th as was scheduled. It went well without any disruption however on the very next day the film was pulled down by 46 out of 48 screens. On investigation by the producers and directors it was communicated that the authorities directed them to pull down the movie. The State however, replied that it hasn’t used the power conferred under the West Bengal Cinemas (Regulation) Act 1954[ii] or the Cinematograph Act 1952[iii].


Present matter was filed under Article 32 of the Constitution of India, evoking Writ jurisdiction of Supreme Court. Petition contended that the State of West Bengal, its Department of Home and the Kolkata Police have caused an utterly unlawful obstruction of the public exhibition of their Bengali feature film, “Bhobishyoter Bhoot” (although sanctioned by sensor board).


BROAD ISSUES

1. Does such unofficial and extrajudicial ban on the release of film certified to be released by the authority amounts to the violation of Rule of Law.

2. Will such ban encroach upon the protection under fundamental rights such as Art.14 (equality before law), 19(1)(g) (freedom to trade or business) and 21 (protection of life and liberty).


HELD

1. Lifting the unofficial ban imposed on the film, the court ordered the authorities to ensure the security and protection of the cinema theatres releasing the film.

2. In an unprecedented judgment, the court also directed the State to provide the compensation of Rs. 20 Lakhs and legal cost.


WHY THIS CASE HOLDS IMPORTANCE:

I. WHY ART.32 R/W ART.142(1)

Article 32 – to direct the state authority to let the petitioners release their film uninterruptedly – in following case provides wider scope of providing justice where it is applicable to whole of India. Important point which should be noted here is, Supreme Court exercises additional power under Article 142(1) (the Supreme Court of India has been vested with the authority to go beyond the scope of any law in case it is of opinion that it is required for complete justice, it may not claimed as a matter of right by the parties but the court itself only may utilize this power) of the Constitution which talks about providing complete justice. Hence, monetary compensation may come under combined reading of both the provisions.


II. COMPENSATION

This case poses relevant question on scope of writ jurisdiction and whether Supreme Court can order for compensation under Mandamus (a writ of mandamus is an order pronounced by the superior court to any lower court, government or public authority, directing them to specifically do something or refrain them from doing something). Conventional approach of court was not always in favour of providing monetary compensation, as it was not the concept under which remedy are being provided through writ jurisdiction.


Precedents of Compensation – The emergence of compensatory jurisprudence was initially emerged through human rights philosophy. It provides positive indication that the judiciary has undertaken the task of protecting the right to life and personal liberty of all the people and had imposed mandate on the state to provide all the means to ensure the same. It was first held for the rights implicit in Article 21 in case of Khatri, [iv], and Veena Sethi, [v], finally enabled the Court to hold that the State is liable to pay compensation.


It resulted in the emergence of compensatory jurisprudence for the violation of right to personal liberty through Rudul Sah v. State of Bihar [vi]. Till the pronouncement made in the above case, the Supreme Court had restricted approach in recognising the principle of monetary compensation for violation of fundamental rights. It shows that the major concern of the Supreme Court is to do justice rather than mechanically applying the law based on precedents. And now the application of this principle can be clearly seen in present case.


Interpretation of Writ of Mandamus – Mandamus per se do not talk about power of Supreme court to order for compensation as it only talks about writ issued by superior court as a command to an inferior court or ordering a person to perform a public duty. However, as held in Bandhua Mukti Morcha, [vii] case, Article 32 provides widest amplitude of power on the Supreme Court in the matter of granting relief. It has power to issue “direction or order or writ” and there is no specific indication, no express language, limiting or circumscribing that power.


Through my limited understand, although there is no specific definition of public duty, I believe that it is not restricted to performance of State duty for public at large. Even one single citizen constitutes public and hence, it is the duty of the state to ensure security and means to achieve all fundamental as well as statutory right to the citizen. It may sometime include providing with monetary compensation to reinstate or at least mitigate the loss.


III. FUNDAMENTAL RIGHT TO EXPRESSION OF ART

In the following case various case have been discussed reflecting the idea and importance of Right to freedom of expression which includes various art forms. Emphasising the same, Justice Chandrachud devised the idea of protection of expression by the State. According to him, it depicts social reality where audience have to choose whether they want to connect with it or not. State here is merely a facilitator which makes the process easy. Further, any short of outreach of public duty amounts to violation of fundamental right. These rights form basic foundation of human existence.


CONCLUSION

The importance of expression in form of art is specifically discussed in the following case where the court has recognised the role of the state in preserving the same. State is considered as protector of the rights of the citizen and hence, it brings additional responsibility on the state to look after all possible means and measures to deal with it. Whereby, it forms part of public function. Therefore, writ jurisdiction can be invoked to provide compensation to the petitioner.


ENDNOTES [i] SCC Online SC 520 (2019). [ii] Section 6 confers the power upon the State government and the District Magistrate to suspend the exhibition of films. [iii] Section 13 confers the power upon the Lieutenant-Governor, the Chief Commissioner or the District Magistrate to suspend the exhibition of films. [iv] Khatri v. State of Bihar, 3 SCR 145 (1981). [v] Veena Sethi v. State of Bihar, 1 SCALE 793 (1982). [vi] 4 SCC 141 (1983). [vii] Bandhua Mukti Morcha v. Union of India, 2 SCR 67 (1984). ABOUT THE AUTHOR

This blog has been authored by Ankitashri Tripathi, who is a Law Graduate from Institute of Law, Nirma University, Ahmedabad.


[PUBLICATION NO. TLG_BLOG_20_106_04]

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