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“It should always be remembered that if intellectual prowess and natural or cultivated power of creation is interfered without the permissible facet of law, the concept of creativity paves the path of extinction; and when creativity dies, values of civilization corrode.”
The cinema has always been a sphere of constant debate over the subject of freedom of speech and expression. In the recent years, the judiciary has witnessed various instances where the right to freedom of speech and expression of artists, filmmakers etc. was the subject of tussle. One such recent case is Viacom 18 Media Private Limited & Ors. vs. Union of India & Ors.. which has created a lot of uproar in various sections of the society due to the huge controversy being associated with it. The Hon’ble Supreme Court of India once again faced the issue regarding Article 19(1) of the Constitution and the suspension of exhibition of a film under Section 6 of the Cinematograph Act, 1952.
The brief facts of the case are that Viacom 18 Media Private Limited (hereinafter, the “Petitioner 1”) filed a writ petition before the Hon’ble Supreme Court against the orders issued by 4 states, namely, Gujarat, Rajasthan, Madhya Pradesh and Haryana for imposing a ban upon the exhibition of the cinematograph film titled as “Padmaavat” (earlier “Padmavati”). The four states had issued the orders to ban the exhibition of the film in the interest of the public and to maintain law and order in the state.The Petitioner 1 is the official distributor of the film whereas, Bhansali Productions Pvt. Ltd. (hereinafter, the “Petitioner 2”) and Mr. (hereinafter, the “Petitioner 3”) are Producer and Director of the film, respectively.
The series of controversies started when Petitioner 3 started the shooting of the film in Jaipur in January 2017. The sets of the film were vandalised and heavily damaged along with Peitioner 3 and the crew being assaulted by the members of KarniSena (A Rajput cast group). The members of KarniSena protested against the objectionable scenes being shown in the film and also accused the Petitioners of distorting the history of Rani Padmini.
The crew members of the film were assaulted at several other occasions and also received threats from the members of KarniSena. In December 2017, the Central Board of Film Certification (hereinafter, the “CBFC”) reviewed the film with the help of examining committee and suggested five modifications to the film. Subsequently, the changes were made and CBFC granted a U/A certificate to the film and declared that the film is fit for public exhibition.
However, in January 2018, the protest by Karni Sena escalated and several states witnessed various incidents of vandalism and heavy damage to the public property by the members of KarniSena. As a result, the states of Gujarat, Rajasthan, Haryana and Madhya Pradesh issued orders to ban the exhibition of the film in theatres, public etc. to maintain law and order. A PIL was also filed before the Hon’ble Supreme Court to quash the certificate granted by the CBFC to Padmavat.
The three-judge bench of the court headed by the Hon’ble Chief Justice, Mr. Dipak Misra ordered for the stay of notifications issued by the four states and also ordered to restrain other states from issuing notifications/orders which prohibited the exhibition of the film in any manner. The court also remarked that it was the obligation of the state to maintain the law and order.
The interim order of the Hon’ble court in the present case heavily relies upon the decision in Prakash Jha Productions & Anr. v. Union of India where the Hon’ble Supreme Court dealt with a similar issue of suspension of a film (Aarakshan) from exhibition in public in the state of Uttar Pradesh.The Hon’ble court stated that the suspension of exhibition of a film in accordance with Section 6 of The Cinematograph Act, 1952 (hereinafter, the “Act”) cannot be ordered unless the film is publicly exhibited and there is likelihood of breach of peace. The court further stated that this is so because a thing can only be suspended if it is operational and not if it is yet to become operational. The Hon’ble court held the suspension to be set aside and the film to be publicly exhibited.
In the present case, the Hon’ble court emphasised upon the words “Suspension” and “being publicly exhibited” of Section 6 of the Act as interpreted in the case of Prakash Jha Productions. The Hon’ble court stated that creative content is an essential aspect of the fundamental right enshrined under Article 19(1) of the Constitution of India and that the right is not an absolute right, thus, it is subjected to regulatory measures under Section 5B of the the Cinematograph Act, 1952 Act and to the guidelines issued by the Central Government.
The Hon’ble court held that once the board has granted certification to a film, the non-exhibition of the same by the States would be contrary to the provisions of the Act and also infringe the fundamental rights of the petitioners.
The Hon’ble court, while having due regard to the issue of right to freedom of speech and expression, placed reliance on its recent judgement in the case of NachiketaWalhekar v. Central Board of Film Certification & Anr. decided on 16.11.2017 regarding a writ of Mandamus filed before the Hon’ble court to pass an order for the stay of nationwide release of a film (“An Insignificant Man”). The Hon’ble court had dismissed the Writ petition and stated that a film is a creation of art and an artist has his own freedom to express himself in a manner which is not prohibited by law. The Hon’ble court held that
“Be it noted, a film or a drama or a novel or a book is a creation of art. An artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication to crucify the rights of expressive mind. The human history records that there are many authors who express their thoughts according to the choice of their words, phrases, expressions and also create characters who may look absolutely different than an ordinary man would conceive of. A thought provoking film should never mean that it has to be didactic or in any way puritanical. It can be expressive and provoking the conscious or the sub-conscious thoughts of the viewer. If there has to be any limitation, that has to be as per the prescription in law.”
In the concluding paragraphs of the interim order, the Hon’ble court while referring to the above-mentioned decisions emphasised that it is paramount obligation of the State of maintain the law and order wherever the film is being exhibited in public. The Hon’ble court protected the right to freedom of speech and expression as enshrined under the Article 19(1) of the Constitution of India.
The Hon’ble Supreme Court of India has once again acted as a patron of right of expression of artists in the present case by staying the notifications/orders passed by the States. The interim order in the present case has set a milestone for creativity and intellectual talent. The legal position regarding the suspension of exhibition of a film was clear even before the present case due to the numerous precedents upon the same issue. However, in spite of such precedents and the legal position being clear, the film Padmaavat faced quite a lot of trouble due to the notifications/orders issued by the States. Furthermore, the Hon’ble Supreme court, in the present case, has reaffirmed the legal position regarding the staying of such notifications/orders thereby upholding the Rule of Law in such cases. The interim order in the present case is thus a boon for the artists and filmmakers as it supports idea of right to freedom of speech and expression.
Author: Mr. Harshit Dave, intern at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at email@example.com.
 Writ Petition(s)(Civil) No(s).36/2018
 (2011) 8 SCC 372
 W.P. (C) No. 1119 of 2017