Breaking| This Is A Piece Of Art, Can't Compare With Hate Speech: Kerala HC Refuses To Stay Release Of 'The Kerala Story'

The Kerala High Court today refused to pass any interim order in a PIL filed by a Lawyer against the release of the movie "The Kerala Story". The Court has sought instructions from the Central Board of film certification and has listed the matter on Friday, on which date the movie is scheduled to be released. 

The Division Bench of Justice N. Nagaresh and Justice Mohammed Nias C.P. asked the Petitioner if he has watched the movie and said that the Petitioner can't bring the concept of hate speech into an art form. 

Advocate Kaleeswaram Raj appearing for the Petitioner submitted that the Petitioner has extracted certain passages from the trailer.

"Did you approach anybody in this regard or are you directly coming to the Court?", Justice Nagaresh asked. 

"The movie is releasing on the 5th and today is the 2nd, there was no breathing time. The trailer was released recently. I am not seeking a ban on release but the Censor Board initially noted 10 cuts, which was done. It required more scrutiny on the part of the Board", Advocate Raj replied and read the transcript of the teaser. 

I don't think that your lordship will even for a movement subscribe to what has been stated in the teaser of the film. They also say in the beginning of the film that the film is inspired by many true stories, which will mean that it is not fiction but fact. It is their introduction to the movie, that it is inspired by true events, Advocate Raj submitted. 

"Which means that massive conversion is taking place in Kerala. This is something that diminishes the dignity of the state as a whole", he submitted. 

"This is teaser. Is this part of the film? Have you seen the cinema?", the Court asked.

"What is available in public domain is trailer and teasor. Film will be released on 5th. Nobody has seen the cinema. What is available in public domain alone can be looked at for the time being" the Counsel responded and added that there is no point in the discussion after lakhs of people watch the trailer. 

"What is so big about this? After all it is a story", the Court said when it heard the counsel read the transcript. 

"Hate speech goes against constitutional morality", the Counsel responded.  

"This is a piece of art. You cannot compare this with hate speech", Justice Nagaresh remarked.

"If this Court feels that this is not hate speech, then nothing else is hate speech", the Counsel responded. "Are we giving more publicity and making it...", the Court asked.

"Publicity will happen even otherwise. This will have to be tested on the basis of constitutional morality. This goes against secularism. The Censor Board is abetting it", Raj submitted.

"You have not sen the film. You do not know the content. You have only seen the teaser and you are blaming the Censor Board", the Bench remarked.

The teaser is part of the film and is inseparable from the movie. Lordship may watch the teaser. This is part of the film. It cannot be said that somebody has not seen the film. I have approached at the earliest moment, Raj submitted.  

"Was a similar matter moved before the Supreme Court", asked the Court after Justice Nias said that it was reported.  

What has happened in the Supreme Court is that in the matter regarding hate speech, an IA was moved. Supreme Court said that you cannot move it as an IA in an incidental proceeding. The Supreme Court said that you will have to approach the High Court. Supreme Court simply adjourned it. That can't stand in the way of a properly constituted writ in the High Court. This is in compliance with what was orally suggested by the Supreme Court, Advocate Raj submitted. 

"During the course of the hearing, this was also mentioned and the Supreme Court refused to grant that relief", Deputy Solicitor General S. Manu submitted.

Before the Supreme Court, they sought a stay of the release of the film, which was not granted. Supreme Court did not entertain it because it is only fiction, Senior Advocate S. Sreekumar appearing for Sunshine Pictures Pvt. Ltd. submitted.  

The Court then enquired if any order was passed by the Apex Court. The Counsel for the Petitioner responded in the negative. 

"If an IA has been moved, and there is no order, that means the IA is pending", Justice Nagaresh remarked.  "Was any order passed or is your IA pending", the Judge asked.

Firstly it is not my IA. Supreme Court is hearing a plea against hate speech in general. I filed the writ petition before the Supreme Court proceedings were reported. Supreme Court said that you cannot do it by an IA. You will have go move before the concerned High Court. The Kerala High Court is the concerned High Court, the Counsel submitted.

"DSG, get instruction on what happened to the pending IA", the Court told the DSG.  

Then the Court was told that the IA is pending and that there were only oral observations by the Apex Court. The Counsel for the Petitioner then said, "Let the order be produced. There is no point in making oral submissions". 

"You only said that an IA was moved", the Court observed. We prepared the writ without being aware of what happened in the Apex Court, the Counsel said. 

"If the Supreme Court is seized of the matter, it will not be appropriate for this Court..", the Court remarked. 

"You have not approached any authority. You have simply rushed to this Court", Justice Nagaresh said.

There is no order from Supreme Court. It was only an attempt, which the Supreme Court declined, the Counsel submitted. 

"We don't know if the Supreme Court declined or not and what is the reason. Let the DSG get instructions", the Court said. 

"In a day or two I can get instructions from Central Board", the DSG submitted. 

Teaser was published on 3.11.2023. They have produced a representation of 9.11.2023. They have approached the Court on the eve of the release of the move. It shows malafides, Senior Advocate S Sreekumar submitted.

"These are personal views of a member of parliament," the DSG said about a representation of MP John Brittas produced by the Petitioner. 

The entire complaints are against the teaser not against the film. In Padmavati's case the law and order issue was dealt with by the Supreme Court, S. Sreekumar submitted. 

Advocate Amit Naik appearing for the Director and Producer of the movie submitted that the Censor Board after applying its mind has granted a censor certificate on the 24th April. He submitted that law and order is not for the State to take care of, as per the Apex Court. "The body which is specially constituted under a statute has applied its mind in terms of Section 5b", he submitted. 

The theatres are booked everything has been done. The Censor Board has granted the certificate after seeing the film. The Board has not received any complaint. If it receives any complaint, it has to forward the same to the Central government. Without seeing the film, seeing only the teaser, this Court has been approached with malafides. There is no merit in the writ petition, S. Sreekumar submitted. 

Please make available the Cenor Certificate, the Court told the DSG. I can make it available, S. Sreekumar responded.

"Law and order is not our ground. Padmavati judgment is not applicable. They cannot say something and make it applicable to the Petitioner. Please see what is the case pleaded in the writ petition. We have pleaded that certification is granted without application of mind. They have suggested 10 cuts, but could not find fault with the teaser, which on the face of it is toxic. It creates communal disharmony. It is against secularism", Advocate Raj submitted.

I have not said that there will be a law order issue. The Central Board has not certified the present teaser, that is my understanding,  that will have to be verified. If it has been certified, how can it be granted with what is said in the teaser? If this is certified, what kind of application of mind has the 3rd Respondent done? If it is without a certificate, it is arbitrary. Even if it has certificate, it is arbitrary. As of today, I am on teaser. This is not disputed by them. If certificate is granted to the teaser, the certificate is illegal. I could have done something only after April 24. I have done it within a week. there is no delay on my part, he added.

There is a presumption that the authority has applied its mind. There is nothing on record to submit that CBFC has not done its duty. No certificate is required for the teaser. It is only required for the movie, the DSG appearing for the CBFC submitted. 

The normal rule of presumption cannot be applied in this case. They are defending the undefendable, Raj submitted. 

"You don't say that is part of the movie", the Court asked about the transcripts of the teaser.  

"That goes without saying. Let them say that it is not part of the movie, that will be the end of the matter", Raj submitted. 

"Hate speech is something very broad, it is not limited to a particular form. They cannot say that this is an art form. They can't say that. It is pernicious. I am not seeking to ban the film", Advocate Raj submitted. 

"You have asked for a stay of exhibition", the Court pointed out.  "In the present form", Raj responded. 

Please make available the certificate, the Court told the DSG. 

Advocate Rakesh K. then submitted that another writ petitioner has been filed which is under defect and not listed and that not only teaser, but the trailer is also released and that it is part of the film. 

"Filed your response to this by the 5th", the Court told the Respondents. 

The writ petition filed by Advocate Anoop VR seeks direction to redact/remove all statements from the teaser, trailer or movie claiming to be factual in nature before the release of the movie. It also seeks a prohibition on the show of the movie `The Kerala Story' in its present form. It seeks to quash the 'A' certificate granted to the movie as unjust and illegal.

The Petitioner had sought an interim relief of stay on the release of the movie on May 5.