Breaking| Supreme Court Stays Ban On 'The Kerala Story' In West Bengal, Orders Police Protection For Theaters In TN

The Supreme Court today stayed the order of May 8 of the West Bengal government banning the movie "The Kerala Story" in the state. 

The Supreme Court adjourned the pleas challenging the certificate granted to the movie to after the summer vacation, stating that it will consider whether to watch the movie. The Court recorded the statement of the state of Tamil Nadu that the screening of the film has not been directly or indirectly prohibited within the state. The Court directed that adequate security shall be provided to every cinema hall to ensure the safety of moviegoers who wish to see the film. It directed that "no steps, tacit or express or formal or informal shall be taken by the state and its officers to prevent the screening of the film".

The Bench of Chief Justice DY Chandrachud, Justice PS Narasimha and Justice J.B. Pardiwala also recorded the statement of Harish Salve that a disclaimer will be added by 20 May that there is no authentic data to back up the suggestion that the figure of conversions is 32,000 or any other established figure and that film is a fictionalised version.

Salve also said that the producers have video interviews of people, which may also be seen by the Court. 

Senior Advocate Gopal Sankaranarayanan appearing for a petitioner submitted at the outset that the Court should watch the movie first.

Senior Advocate Harish Salve appearing for the producers of the movie started by referring to the counter affidavit of the state of West Bengal. "During surveillance, it has been observed that the audience makes very objectionable comments whenever they see a particular scene where Hindu or Christian girls are seen tortured. It has also been observed that while coming out of movie halls people discuss among themselves to limit their interaction with Muslims and or that these Muslims ought to be taught a lesson", he read from the affidavit. 

"These make very interesting reading", Salve said, referring to the 13 incidents in the state, mentioned in the affidavit of West Bengal. He read each of the incidents and said that "they pick up some people who tell them that the movie is terrible and will cause riots". 

He said that the second basis for the ban is an incident from Maharashtra that has been cited in the affidavit. He said that the movie is not banned in Maharashtra and is running across the state without any problem.

He said that the provision can be used only if there is some incident and that the state cannot sit in appeal over the censor board, anticipating problems. 

With respect to Tamil Nadu, Salve referred to the affidavit of the state and submitted that he wants the state to be directed to provide security measures as they have already professed to do and make sure that no instruction formal or informal is issued against the screening of the movie. 

He submitted that the since there is a valid certificate, the court should first consider the plea against the ban on the movie. He submitted that the state can't sit in appeal over certification. The Court was told that the case in Kerala High Court is pending and that the Madras High Court has dismissed the plea and that no one has filed any statutory appeal against the certification. "The ban is in the teeth of a valid certification", he submitted.  

Salve cited a judgment of the Supreme Court in the matter of Indibily Creative Pvt Ltd & Ors v. Govt of West Bengal & Ors which related to the movie Bhobishyoter Bhoot in West Bengal. "We have all kinds of thoughts and not just one kind of thought. We can't have only liberal thought", he submitted. He also relied upon the judgment in the matter of F.A. Picture International v. Central Board of Film Certification. 

"Exaggeration is entirely a part of creativity", he submitted. He submitted that the Madras High Court was right in holding that the decision-making process can be challenged before the High Court, but not the decision itself, which can be appealed against. "Art has to be provocative", Salve said while reading an earlier judgment. 

He said that the argument of Tamil Nadu that people did not like the film is spurious since it did well when it was initially exhibited. He also read the disclaimer from the movie and that the teaser mentioning 32 thousand was taken out. 

When Senior Advocate Sankaranarayanan said that the same appears in the movie, Salve said that it is not there in the movie and that the said contention of the producers has not been denied by the respondents in their counter affidavit. 

Senior Advocate Abhishek Singhvi for the state of West Bengal started making his submissions, the CJI said, "You have a duty to maintain law and order", and added that there is a positive obligation on the state to facilitate freedom of speech. "Section 6 cannot be used to put a premium on public intolerance", the CJI said, adding that every film will have critics. 

Senior Advocate Abhishek Singhvi said that the likelihood of causing public order issues is a ground available to the state. He submitted that the producers' challenge to the statutory provision indicates that the Section can be invoked against them. He said the ban was not pre-screening and that the movie was permitted initially to be exhibited. 

He said that the disclaimer in the movie is "cleaver legal wording". 

"The film has been released everywhere in the country", the CJI said and Singhvi replied that "West Bengal's demographic profile is different, demographic profile has to be kept in mind". 

Demographic profiles can't be the same all over the state. Hence the District Magistrate has been granted power. If there is an issue in one district, it need not be banned in the whole state. Intolerance cannot be tolerated, the CJI said. 

"You cannot make free speech dependent on public display of emotions", the CJI said. 

Singhvi also said that the movie contains the part that is removed from the teaser. He said that the figure is 3 and not 32,000. "This is part of the movie itself", he said. "Beyond this what can a state act on", Singhvi asked, referring to intelligence reports cited in the state's affidavit.  

Senior Advocate Gopal Sankaranarayanan then submitted that many incidents had happened across the state and that the makers have refused to say that the film is fictional. If they say that the movie is fictional and remove the reference to 32,000, the state may not have a problem, he submitted. He said that if the makers make a movie which is a propaganda film and refuses to say that it is fictional, then there is a problem.  "If we permit these kinds of propaganda films, admittedly saying that they are not fictional...", he submitted.

Please see the figure of 32,000, it is a distortion of facts. Much as we protect freedom of speech, we can't vilify a community, the CJI said. 

There is no authentic figure available. That incidents have happened in not in dispute, Salve submitted adding that he can add a disclaimer in the movie that authentic figures are not available. 

Senior Advocate Kapil Sibal then read some sentences from the script of the movie and Salve said that such a dialogue is not there in the movie. "This impacts millions of people. Art form is also subject to 19(2)", Sibal said requesting the Court to watch the movie. 

The final judgment of the Madras High Court in the writ petition which assailed certificate, we will consider after vacation. We will have to consider whether to watch the film. We intend to stay the order of the state of West Bengal and we will record the statement of the state of Tamil Nadu, the Bench said.

Senior Advocate Huzefa Ahmadi read from the script of the film and submitted that it is capable of generating hate and creating prejudice.  

Solicitor General Tushar Mehta appearing for the Union submitted that the movie has been released across the country and that there has been no violence. He submitted that the Court has said earlier that those who do not want to watch a movie need not watch. He also submitted that some social realities are depicted in some movies. 

In the affidavit filed by the West Bengal government before the Supreme Court, the state claims that it has found through police surveillance when the movie was released in the state that the audience coming out of the movie halls were discussing among themselves to limit their interaction with Muslims and that Muslims ought to be taught a lesson.

Wherein, in the affidavit filed by the State of Tamil Nadu before the Supreme Court, they stated that the Petitioners have deliberately made a false statement. The State refuted the allegations that it has imposed a shadow ban on the film, the State submitted that if such a ban on the screening of the film would have been imposed, then the film would not have been released in nineteen multiplexes since the date of its release.

The Kerala High Court had on May 5, 2023, refused to pass any interim order on pleas against the release of the movie "The Kerala Story". The Court recorded the statement of the producers of the movie that the statement about 32000 women from Kerala converting or joining ISIS will be removed from the teaser and trailer of the movie and also from the social media handles of the movie makers.

The High Court had recorded in its order that it has watched the teaser and trailer in open court and recorded the statement that Sunshine Pictures Pvt. Ltd. would withdraw the trailer from their social media handles. "The trailer does not contain anything offensive against any particular community as a whole", the Court also said in its order.

The Supreme Court had recently, on two different occasions, refused to entertain a plea seeking a stay on the release of the movie. The Bench had noted that the Petitioner should first approach the High Court. Similarly, the bench led by the Chief Justice had refused to stay the exhibition of films while declining to entertain a petition against the release of the movie "The Kerala Story", the Bench said that ultimately the markets decide the fate of a film.

A Division Bench of the Madras High Court had dismissed a plea against the release of the movie. "Without watching the movie, you can’t proceed on the basis of assumptions and presumptions", the Bench remarked during the hearing.

Cause Title: Qurban Ali Sumita Hazarika v. Central Board Of Film Certification And Anr. [SLP(C) No. 10166/2023] & Sunshine Pictures Pvt. Ltd. v. Union Of India And Ors.[W.P.(C) No. 552/2023]