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In an interesting judgment handed down this Thursday, a two-judge bench of the Supreme Court held that the government of West Bengal was required to compensate a film-maker for trying to “shadow-ban” his film. The facts of Indibility Creative v Govt of West Bengal were straightforward: a film called Bhobishyoter Bhoot had been cleared by the Film Certification authorities, and had started to run in cinemas. However four days before its scheduled release, one of the directors received a call and a letter from the state’s intelligence unit, asking for a special screening, on the ground that the film might hurt public sentiments and threaten public order. The director refused. However, very soon after the release of the film, it was inexplicably withdrawn from most cinemas, and tickets were refunded. When the directors made enquiries, they were told that this was being done on the instructions of “higher authorities.”

After the Supreme Court intervened with some strongly-worded interim orders, a modicum of normalcy was restored. The Court nonetheless reserved orders, and delivered a judgment on merits shortly thereafter.

Chandrachud J.’s judgment involves a reiteration and endorsement of settled legal principles that are, regrettably, too often honoured only in the breach: that there cannot be a two-track certification process, where the State’ authorities are running parallel censorship proceedings alongside the Certification Board(s); that in cases where there is an apprehension of public disorder, it is incumbent upon the State to provide the necessary police protection, rather than upon the speaker/artist/writer to withdraw (and thereby facilitating the heckler’s veto); and that the restrictions upon free speech cannot traverse beyond the strict confines of Article 19(2). In addition, however, the judgment contains a few elements worthy of remark.

The first is that it takes seriously the ways in which State authorities can informally exert pressure and effectively choke off the meaningful exercise of fundamental rights. In this case, for example, the State government insisted that it had not taken recourse to any statutory provision that formally banned the film. If that was true, however, then, as the Court observed:

… there has to be some explanation forthcoming before the Court why the film was simultaneously removed from the theatres, at one stroke, shortly after release. The apprehension of the petitioners that this was an action which followed on the letter dated 11 February 2019 of the Joint Commissioner of Police is not unfounded. The letter addressed by INOX to the producer specifically mentions that they were directed by the authorities to discontinue the screening in the ‘interest of the guests’. We have no manner of doubt that this was a clear abuse of public power. (paragraph 17)

Effectively, therefore, the Court drew an adverse inference against the State, based upon a set of fairly unambiguous factual circumstances. Following upon the Madras High Court’s recent judgment involving the “informal” settlement that Perumal Murugan was forced into, this signals a clear judicial intent to take seriously State action that would otherwise pass under the radar due to its non-legal/extra-constitutional/behind-the-scenes character.

This is closely linked to a second important point – the Court’s clear articulation of the positive component of Article 19(1)(a). As Chandrachud J. noted:

But, apart from imposing ‘negative’ restraints on the state these freedoms impose a positive mandate as well. In its capacity as a public authority enforcing the rule of law, the state must ensure that conditions in which these freedoms flourish are maintained. (paragraph 18)

This is, of course, nothing more than applying a coherent constitutional framework to the basic insight – expressed first in S. Rangarajan and then beyond – that if the threats to free speech come from private parties, then it is the obligation of the State to ensure that conditions of law and order are maintained so that the expressive activity in question can go ahead. Rangarajan’s insight, of course, arose out of concrete circumstances where the State threw up its hands before the Court and argued it was not in a position to guarantee the maintenance of law and order if a particular film was screened – an argument that was given short shrift by the Court. Indibility Creative – the present judgment – has now taken that insight further, and generalised it into a principle.

The third element that rounds things off is the relief: the Court held that:

As a consequence of the pulling off of the film from the theatres where it was screened on 16 February 2019, the petitioners have suffered a violation of their fundamental right to free speech and expression and of their right to pursue a lawful business. This has been occasioned by the acts of commission and, in any event, of omission on the part of the state in failing to affirm, fulfill and respect the fundamental freedoms of the petitioners. We are clearly of the view that a remedy in public law for the grant of remedial compensation is required in the present case. We order and direct the respondents to pay to the petitioners compensation which we quantify at Rs 20 lakhs within a period of one month from the date of the present judgment. (paragraph 20)

This is particularly important, because in far too many cases, after finding a breach of fundamental rights, the Court has left matters as they are. The loss, however – especially in cases of this kind – is clear and quantifiable, and a refusal to restore status quo only ensures that, despite the finding of a violation by the court, the chilling effect of arbitrary State action continues. On the other hand, a clear judgment on compensation sets the tone for an effective enforcement of fundamental rights; and it is only within a climate in which enforcement is guaranteed, can those rights truly flourish.

Thus, a combination of these three features – judicial cognisance of informal, “shadow-banning”, an articulation of the positive obligations upon the State to ensure that free expression is guaranteed notwithstanding threats from private parties, and remedial compensation should the State fail to discharge its obligations – ensure that this judgment can become the basis of a strong, rights-protective jurisprudence. Whether that happens, of course, depends on how future courts – especially the lower courts – implement it.

A final point of interest. In a paragraph dealing with the importance of satire to any system of free expression, Chandrachud J. observed that:

Satire is a literary genre where “topical issues” are “held up to scorn by means of ridicule or irony.”It is one of the most effective art forms revealing the absurdities, hypocrisies and contradictions in so much of life. It has the unique ability to quickly and clearly make a point and facilitate understanding in ways that other forms of communication and expression often do not. However, we cannot ignore that like all forms of speech and expression, satirical expression maybe restricted in accordance with the restrictions envisaged under Article 19(2) of the Constitution. For example, when satire targets society’s marginalized, it can have the power to confirm and strengthen people’s prejudices against the group in question, which only marginalizes and disenfranchises them more. (paragraph 13)

The last lines are particularly important, because they point towards the Canadian/South African constitutional model of understanding hate speech: recall that in Canada and South Africa, “hate speech” is asymmetrical, and is understood as expression that stigmatises or dehumanises a vulnerable class of people, in a manner that feeds into a wider climate of marginalisation and discrimination (for example, holocaust denial as a form of anti-semitic speech, or – closer home – caste slurs such as “chamar”). The regulation of hate speech, thus, is inextricably bound up with the constitutional value of equality (expressed in that old injunction to satirists and critics, “punch up, not down“).

In India, that model is yet to catch hold; while the Court hinted at that in 2014, for the most part, the dominant understanding remains that of hurt sentiments and wounded feelings – an approach that, for obvious reasons, is constitutionally unsustainable. And so, while the observations in today’s judgment are fleeting, they do constitute an invitation to a future bench, dealing with an appropriate case, to make them a part of the law.

We can hope that some day, that invitation will be taken up.