Academic Freedom, Artistic Expression, Content Regulation / Censorship
Thailand v. Patiwat Saraiyaem and Pornthip Munkong
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The Supreme Court of India declared an unofficial ban imposed by the West Bengal Government on a satirical film to be unconstitutional. The case concerned a ‘shadow ban’ on the Bengali film, Bhobishyoter Bhoot (‘Future Ghosts’), a political satire, which was duly certified for public exhibition. While there was no formal ban, the Petitioners averred that the State had misused police powers to cause unlawful obstruction to the screening of the film. In addition, the Court considered the State’s failure to discharge its positive obligations to protect freedom of speech and expression. Therefore, it was held that the State violated the Petitioners’ right to freedom of expression under Article 19(1)(a) of the Constitution. It was also considered necessary to consider the issue of compensation as a public law remedy for violation of this right. In an unprecedented decision in film censorship cases, the Court ordered Rs. 20 lakhs as compensation and an addition Rs. 1 lakh as legal costs.
The Petitioners were producers of the Bengali film, Bhobishyoter Bhoot (‘Future Ghosts’). The film was a political satire about ghosts who seek to find meaning through rescuing the marginalized and the obsolete. The film was scheduled to release in Kolkata and some districts of West Bengal on 15th February. The film received its certificate for public exhibition on 19 November 2018. 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 Petitioner No. 2 responded by letter dated 12 February 2019 that 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 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.” The Petitioners therefore filed a writ petition before the Supreme Court alleging violation of their rights.
By the time 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. One of the exhibitors, INOX Leisure Ltd eventually addressed a communication on 4 March 2019 to the producer stating that they were “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. The Court was also informed by the State of West Bengal that 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.
At the time of hearing, the Court considered 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 orders. By order dated 15 March 2019, the Court directed the Chief Secretary and Principal Secretary, Department of Home of the State of West Bengal to ensure that there is no obstruction to the screening of the film. They were also instructed, along with the Director General of Police, State of West Bengal to ensure that adequate security arrangements are made to protect the viewers of the film and the property of the exhibitors. By order dated 25 March 2019, the Court 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, the Court further directed that the Joint Commissioner of Police withdraw the said letter. The police and State authorities were directed to send 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. An affidavit of compliance dated 27 March 2019 was duly filed by the relevant authorities.
Justice D Y Chandrachud delivered the judgment for the two judges bench.
The 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.” [para. 12]
The Court began with a survey of philosophical and literary writings, citing Voltaire, Camus, and Simone de Beauvoir among many others, to establish the value of freed speech in a democratic society. In particular it recalled that the right to freedom of expression requires extending protections to speech we may despise, as “[t]his principle is at the heart of democracy, a basic human right, and its protection is a mark of a civilized and tolerant society.” It further elaborated that there are moral arguments to defend free speech based on its intrinsic value as well as instrumental arguments based on its benefits for individual, social and economic development. [para. 13] Citing John Stuart Mill, the Court noted that restrictions to freedom of expression can only be justified if they are to prevent harm to others. It relied on Dworkin’s concept of democracy to establish that the participation of minorities and the presentation of unconventional views are necessary for public debate. Satire, it noted, is a powerful form of artistic expression able to quickly reveal the “absurdities, hypocrisies, and contradictions” in life which is protected, except in instances where it could marginalize or disenfranchise groups.
Next the Court extensively reviewed established case law on the “narrow and stringent” limits to restrictions on freedom of expression (Romesh Thapar v. State of Madras), especially “concerning censorship of content by state-controlled entities” (LIC v. Manubhai Shah). [para. 14]
The Court considered the circumstances surrounding the release and subsequent withdrawal of the film from all exhibitors, including the communication by police officials to the Petitioners. 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.” [para. 16] It concluded that the State had sought to 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; whereas in the present circumstance, there was no formal ban or reasons provided by the State, rendering this right illusory. The Court additionally noted the potential chilling effect such arbitrary restrictions could have.
The Court also considered the failure of the 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. The Court cited S. 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] It further explained that once a film had been cleared by the film board or tribunal, 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 maintained. [para. 14] (see K.M. Shankarappa v. Union of India, Maqbool Fida Hussain v. Rajkumar Pandey and Viacom 18 Media Pvt Ltd. Versus Union of India)
Considering the social context, the Court expressed a concern that “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.” [para. 18]
Therefore, considering the State’s interference with the freedom of speech and expression, both in commission and omission, the Court held that there was a violation of the rights of the Petitioners under Article 19(1)(a) of the Constitution. The Court also recognized the importance of remedy under public law to ensure adequate compensation for this violation of Fundamental Rights. The Respondents were directed to pay compensation quantified at Rs. 20 lakhs by the Court, in addition to Rs. 1 lakh as legal costs.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expressly reads positive obligations into the right to freedom of speech and expression and finds that in the absence of the State’s duty to take measures to protect freedom of expression, the right would be rendered illusory. The decision also considers the particularly adverse impact of ‘shadow bans’- where the ban is not a formal exercise of statutory power. Such bans are considered insidious and particularly prejudicial to freedom of expression as they limit the right to avail judicial review of State actions, and reasons are not disclosed to the affected person. Therefore, the importance of judicial review to both the Rule of Law and freedom of expression, is recognized.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision of the Supreme Court is binding on all lower Courts and future Benches of the Supreme Court under the principle of stare decisis. The decision is significant for the express recognition of positive obligations under freedom of expression. Further, it was the first time the Court ordered compensation under public law for interference with the screening of a film.
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