Whether the action of the Respondent State government s to ban scree ning of the film in their

respective ststes unconstitutional and ultravires of the Constitution of India?

It is humbly submitted that the in the instant case the action of the Respondent State
government s to ban screening o njf the film in their respective ststes unconstitutional and
ultravires of the Constitution of India since it is violative of the fundamental rights of the
indivuals guaranteed by the part third of the Indian Constitution and further the act is itself
ultra vires since CBFC is the regulatory body for film exhibihition and the stste government
cannot interfere in the working of CBFC unreasonably.

The action taken by the State government is ultra vires and arbitrary in nature:

CBFC and the Cinematograph act, 1952

The Central Board of Film Certification (CBFC) is a statutory censorship and classification
body under the Ministry of Information and Broadcasting, Government of India. It is tasked
with "regulating the public exhibition of films under the provisions of the Cinematograph Act
1952". Films can be publicly exhibited in India only after they are certified by the Board.

The Certification process is in accordance with The Cinematograph Act, 1952, The
Cinematograph (certification) Rules, 1983, and the guidelines issued by the Central
government u/s 5 (B)

It is to be noted that Section 13 .of the Cinematograph Act, 1952 empowers the Central
government or the local authority to suspend exhibition of a movie in certain cases, including
when public exhibition of a film is likely to cause breach of peace.the section reads as-

13.(1) The Lieutenant-Governor or, as the case may be, the Chief Commissioner, in respect of the
1[whole or any part of a Union territory] and the district magistrate in respect of the district within
his jurisdiction, may, if he is of opinion that any film which is being publicly exhibited is likely to
cause a breach of the peace, by order, suspend the exhibition of the film and during such suspension
the film shall be deemed to be an uncertified film in the state, part or district, as the case may be.

(2) Where an order under sub-section (1) has been issued by the Chief Commissioner or a district
magistrate, as the case may be, a copy thereof, together with a statement of reasons therefore, shall
forthwith be forwarded by the person making the same to the Central Government, and the Central
Government may either confirm or discharge the order. An order made under this section shall
remain in force for a period of two months from the date thereof, but the Central Government may,
if it is of opinion that the order should continue in force, direct that the period of suspension shall be
extended by such further period as it thinks fit.

5. The power under Section 13(1) of the Cinematograph Act is conferred on the District
Magistrate, that too in respect of the district within his/her jurisdiction. Such a power is not
unfettered, and is subject to the conditions stipulated in the sub-section itself, which is the
formation of opinion by the District Magistrate that the film, which is being publicly
exhibited, is likely to cause a breach of peace.

In the instant case,In the present case, not a single refenecre hsve been made regarding any of
the District Magistrates in the State have formed the opinion that the film “Being Gay”,
which is scheduled to be publicly exhibited soon, is not likely to cause a breach of peace. the
state government itself banned the movie without any reference to the “opinion” of the
concerned District Mgisterte of thirer respective juriduction and threby the act of banning the
film is clearly violative of the section 13 of the Cineetograph act and is thus arbitarty and
ultra-vires.

A similar position was found in the acse of Swami Darshan Bharti v. Union of India, where
the court held that “ The power conferred under Section 13(1) of the Cinematograph Act,
1952 is on the District Magistrate, and exercise of such power is to be confined only to the
limits of his jurisdiction which is the district of which he is the District Magistrate. Any
information or representation could only have been furnished or addressed to the District
Magistrate and, exalted though the office of the Chief Minister is, the law (i.e the
Cinematograph Act, 1952) confers power of suspending exhibition of a film, under Section
13(1) of the Cinematograph Act, 1952, only on the District Magistrate and not on any other
superior authority.”
Action of the State government is arbitrary:

Honourable Supreme Court in the case of Prakash Jha Productions v. UOI interpreted the
section 6 of the UP Cinema (Regulation) Act of 1955, dealing with the power of the state
government to suspend the public exhibition of a film held that “When it is said that a film is
being publicly exhibited, it definitely pre-supposes a meaning that the film is being exhibited
for public and in doing so if it is found to likely to cause breach of peace then in that event
such a power could be exercised by the State Government. Such an extra-ordinary power
cannot be exercised with regard to a film which is yet to be exhibited openly and publicly in a
particular State. This view that we have taken is also fortified from the use of the word
'suspension' in the said section”

In the para 18 of the judgement,the honourable Supreme court stated that 18. The expression
“being publicly exhibited” and the word “suspension” are relevant for our purpose and,
therefore, we are giving emphasis on the aforesaid expression and the word. When it is said
that a film is being publicly exhibited, it definitely presupposes a meaning that the film is
being exhibited for public and in doing so if it is found likely to cause breach of peace then in
that event such a power could be exercised by the State Government. Such an extraordinary
power cannot be exercised with regard to a film which is yet to be exhibited openly and
publicly in a particular State. This view that we have taken is also fortified from the use of
the word “suspension” in the said section.

The section 6 of the UP Cinema (Regulation) Act of 1955 reads as-

6. Power of the State Government or District Magistrate to suspend exhibition of films in certain
cases – (1) The State Government, in respect of the whole of the State of Uttar Pradesh or any part
thereof, and the District Magistrate in respect of the district within his jurisdiction, may, if it
exhibited is likely to cause a breach of the peace, by order, suspend the exhibition of the films and
thereupon the films shall not during such suspension be exhibited in the State, Part or the district
concerned, notwithstanding the certificate granted under the Cinematograph Act, 1952.
In the Instant case, the film was banned by the by the Chief minister of U.P, Mr. Baijunath
without the film being “public exhibited” whuch is a neccecay condition required under
section 6 of the UP Cinema (Regulation) Act of 1955 inorder to suspend the screening of a
film and threreby the action taken by the stste is ultravires.

The action of the respondent State government is violative of Fundamaental Rights:

Article 19:

Various judgments of the Supreme Court have referred to the importance of freedom of speech and
expression both from the point of view of the liberty of the individual and from the point of view of
our democratic form of government.

For instance, in the early case of Romesh Thappar v. State of Madras91 , the Supreme Court stated
that “freedom of speech lay at the foundation of all democratic organizations”. In Sakal Papers (P)
Ltd. v. Union of India92 , a Constitution Bench of the apex Court said freedom of speech and
expression of opinion is of paramount importance under a democratic constitution which envisages
changes in the composition of legislatures and governments and must be preserved.

In a separate concurring judgment, Justice Beg, in Bennett Coleman & Co. v. Union of India93 , said
that “the freedom of speech and of the press is the „Ark of the Covenant of Democracy‟ because
public criticism is essential to the working of its institutions.”

Equally, in S. Khushboo v. Kanniamal, the Court stated that “the importance of freedom of speech
and expression though not absolute was necessary as we need to tolerate unpopular views. This
right requires the free flow of opinions and ideas essential to sustain the collective life of the
citizenry.” While an informed citizenry is a pre-condition for meaningful governance, the culture of
open dialogue is generally of great societal importance.

Cinema is unarguably the most powerful medium of the present with tremendous affective and
performative potential. In terms of performance art-forms evolving from myth to modernity, from
ritual to theatre, cinema has grabbed the space within and outside the human mind. In the case of
Secretary Ministry of I & B v. Cricket Association of Bengal, 120 it was held by the Supreme Court
that freedom of speech and expression includes “right to acquire information and to disseminate it
to public at large”.
Article 19(I)g:

When a film is banned, it does not only affect the freedom of speech and expression of the film
maker, it affects the economical aspect of many people which is also guaranteed under Article 19(1)
(g)1 .of the Constitution. Film making, distribution and screening are essential aspects of film
business, if the film is banned, it affects all those aspects which definitely falls under Article 19(1)(g).

It is threreby submitted that the State government by imposing the ban of a movie are violative the
fundamental rights enshrined in the part III of the constitution specifivally the right mentioned
under Articl 19(I) i.e.; freedom of speech and expression.

The Supreme Court refused to entertain a public interest litigation seeking ban on the release of PK
for promoting nudity and vulgarity. Dismissing the plea, the apex court told the petitioner, “If you
don't like then don't watch the film but don't bring religious facets in it”, adding that, “these are
matters of art and entertainment and let them remain so.” 2

Restrictions on Fundamental rights must be reasonable:

The Supreme Court in State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat119 stated that a total
prohibition under Article 19(2) to (6) must also satisfy the test that a lesser alternative would be
inadequate.

As per the Article 19(2) of Indian constitution, freedom of expression would not be available in cases
where there would be a breach of decency or morality in cases like contempt of court, defamation
or when an offence is committed and lastly in cases where the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign States, public order etc are
challenged.

1
INDIA CONST. art. 19, cl. 1. Protection of certain rights regarding freedom of speech, etc. – All citizens shall
have the right – . . . (g) to practise any profession, or to carry on any occupation, trade or business..
2
167 Available online at http://indiatoday.intoday.in/story/aamir-khans-pk-in-another-legal-tanglepil-seeking-
ban-filed-in-sc/1/377072.html)
One should also take note of case of Union of India v. K.M. Shankarappa in which the Honourable
Supreme Court held that “In any democratic society there are bound to be divergent views. Merely
because a small section of the society has a different view from that as taken by the Tribunal, and
choose to express their views by unlawful means would be no ground for the Executive to review or
revise a decision of the Tribunal. In such a case, the clear duty of the Government is to ensure that
law and order is maintained by taking appropriate actions against persons who choose to breach the
law.”

Further in the case of Viacom 18 Media Private Limited vs Union Of India, the Honourable Supreme
court in the para 17 of its judgement held that “ ... we direct there shall be stay of operation of the
notifications and orders issued by the respondent-States and we also restrain the other States to
issue notifications/orders in any manner prohibiting the exhibition and we are sure, the concerned
State authorities shall keep paragraph 27 of the judgment in the case of Prakash Jha (supra) in mind
which clearly lays down that it is the paramount obligation of the State to maintain law and order. 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

And in the instant case, the State government has failed to maintain law and order in the society
thus resulting into the situation of failure Constitutional machinery and the incedent of Novemeber
6, 2018 is a glaring example of it. On November 6, the protest against the movie turned violent
resulting in clashes and death of two persons leaving another ten person severely injured. The threat
regarding violence by various grups were received even from the announcement of the Totle of the
movie but the State government has not taken any step to control these violent groups and prevent
any kinfd of violence but it has failed to do so.