Breaking| Hindu Sanyasis Routinely Depicted In Bad Light: Kerala High Court While Declining To Stay Release Of 'The Kerala Story'

The Kerala High Court today declined 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 Bench of Justice N. Nagaresh and Justice Sophy Thomas 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.

None of the petitioners have watched the movie. A competent statutory has examined the movie and found that the film is suitable for public exhibition. As provided in the guidelines, the Censor Board has examined the movie as per guidelines before certifying the film. From the statement of the DSG, we find that the producers have published a disclaimer that the film has been fictionalised or is a dramatized version. We are not inclined to pass an interim order restraining the release of the movie. Since the makers have agreed to remove some portions, no further orders are required, the Court said in its order.

The Court also directed that the complaints of some of the petitioners before the Central Board can be prosecuted by the said petitioners.

Senior Advocate Dushyant Dave appearing for the petitioner started by reading from the pleading about what is depicted in the movie. He submitted that the Court should permit the display of the trailer in the Court. He said that the impact of the film is more than books and it impacts minds and creates serious public order and law and order problems. He submitted that the trailer itself shows how dangerous it is for Kerala society and that the entire community has been demonised.

"What is there in the movie that demonises the entire community?", Justice Nagaresh asked.

Please see the trailer. The film is not released. The Court should watch the movie along with the lawyers. The Apex Court granted a stay on Sudharshan TV's show after it saw the episode and found that the community is being demonised, Dave submitted.

"We will see the trailer after hearing the other side. Let us see what are the allegations", Justice Nagaresh replied.

Dave read the Cinematograph Act and submitted that the effect of the movie on the public has to be considered.

"Is there any allegation in the trailer or cinema that the entire society is...", Justice Nagaresh asked, when he was interrupted. "I read exactly what the trailer says", Dave said.

"There is nothing against an entire society there", Justice Nagaresh said. "Your Lordship should judge it overall," Dave submitted.

"To judge it overall, one should see the movie. A statutory authority has already seen the movie", Justice Nagaresh said. Please see the role of the statutory authority, Dave said and read further from the Act.

Dave submitted that the part of the provision that refers to the integrity and sovereignty of the country will apply in this case and explained the importance of secularism and fraternity. "Fraternity in society is very very important", he submitted.

"This is not a historical movie. It is a story. It is 'Kerala story'", Justice Nagaresh remarked. "If it is a story based on a false narrative, the Court has the authority to sit in judgment over the Board's decision", Dave submitted.

This is not based on facts, if fiction is false, it might incite someone, saying, our girls are being lured. This will come under Section 153A, Dave submitted.

"What is wrong in it", asked Justice Nagaresh. "It is false", Dave responded.

"This is not history. It is a fiction. In Kerala we are so Secular, there was a movie where a Poojari spit on an idol. There was no problem. Can you imagine a Poojari spitting on the idol? It was an award-winning movie", Justice Nagaresh said.

I have not seen that movie, Dave said, adding, "Lordships may take an overall view. These kind of subtle messages are not good for the society. Your Lordships are rights, this is not fact, it is fiction, but it is intended to create divisions", Dave submitted.

"There are umpteen number of movies where Hindu Sanyasis are depicted as smugglers or rapists. Nobody protests. You must have seen many such Hindi films. In Malayalam also there are such movies", Justice Nagaresh said.

Dave replied by saying that nobody may have approached the Court then.

"The teaser was published in November. You are coming at the last stage. None has approached any statutory authority", Justice Nagaresh added.

Dave then replied that he has approached the statutory authority and that the purpose of the fiction is to portray the Muslim community as villains.

When Dave read from the judgement of the Apex Court in the matter of Firoz Iqbal Khan vs Union of India, Justice Nagaresh asked, "Mr. Dave was this a fictional movie? Was this a movie? Did Firoz Iqbal Khan deal with a fictional story?"

Dave replied that it is about a fictional television serial and that he is on the principles laid down in the judgment and that the same squarely apply to the fact of the case.

When Dave submitted that even if there are stray incidents, the perpetrator should not be glorified through movies, Justice Nagaresh asked, "Are the filmmakers trying to glorify it or condemn it?" Dave responded by saying that it was like looking at the glass as half filled or half empty.

He said that he is for freedom of expression but if it poisons minds, it must be stopped.

Senior Advocate George Poonthottam for the petitioner in another writ petition submitted that he has prayed for recalling the certificate. "Lordship is bound by Your Lordship's order". He said that the Court has noted in the order that without watching the movie, allegations cannot be entertained based on the teaser. Now your lordship may see the movie.

"We are not going to sit in appeal of the certification. None of us have seen the movie", Justice Nagaresh said.

When the transcripts of the trailer were read out, the Court said that the movie makers say that the movie is inspired by true events but not that it is a true story. The Counsel said that is not the case.

"What is so provocative here? What is wrong in it?", Justice Nagaresh asked.

Counsel then asked the Court to watch the entire movie in the chambers. The judge then responded by saying that the Court will not sit in appeal over the certificate.

Ours is a democracy with secularism embedded in it, Justice Nagaresh said.

"This is not the first time that a movie depicts a religious sect in a bad light. There are various movies which depict various religious sects in bad light", Justice Nagaresh said. He continued by saying, "Secularism is the blood of the people of Kerala. Constitution came later. Keralites lived here for 1000 years without any.."

"You can say that my God is the only God, my God is the true God. 'Yeshu Eka Rakshakan' (Jesus is the only protector). Is it not offensive if you say it to a person of another religion? But the Constitution gives you the right to say it and people are propagating it. Here in the movie it is said that Allah is the only God, it is the true God", Justice Nagaresh said.

When the Senior Advocate submitted that the Court should not let happen, what happened in Victoria Gauri's case, Justice Nagaresh said smiling, "If that happens, the petitioners can blame their counsel".

The teaser and the trailer were then displayed in the open court.

"What is against Islam as a religion or against Islam in India, in this? Allegation is against an organisation, ISIS", Justice Nagaresh said.

"It is depicted that Kerala is the centre of all these activities", the Senior Counsel said. "I don't see that. Don't go into the veracity of what is said, it is fictional, it is not history", Justice Nagaresh replied.

"Even if some religious groups have been shown in a bad light, why should the movie be banned? This has been going on in Kerala for so many years", Justice Nagaresh said.

A Counsel then submitted that a Muslim cleric is being shown in a bad light and that there is not a single instance where a Muslim cleric is involved in any activity as depicted.

"Even Christian preachers and Hindu Sanyasis are shown in a bad light in so many movies. Nothing happens", Justice Nagaresh said.

"There are no ghosts or vampires, but movies show them. That is fiction", the Court said.

Advocate Mohammed Shah appearing for another petitioner submitted that his client has filed a complaint under Section 32(1) of the Cinematograph (Certification) Rules, 1983. He submitted that something that is not within the film cannot be added to the teaser. That the first teaser said that it is a true story. The second teaser makes factually incorrect statements while saying that it is a true story, he submitted. He submitted that spiritual leaders can be criticized but Gods of other religions cannot be attacked. He submitted that the trailer is part of the film and therefore the film need not be seen and that there is an offence in the trailer itself. He submitted that his complaint is pending before the Censor Board, though it is bound to be forwarded to the Central government. He submitted that offences under Sections 153A, 153B and 295A are made out from the trailer.

"This freedom is given by Constitution to say that your God is the only God. When one says that my God is the only God, that is also offensive. It is permitted by Constitution. If a person can propagate this, why can't it be shown in the cinema? Why should one get offended?", Justice Nagaresh asked the Advocate.

"Once you say that my God is the only God, then all other Gods are necessarily fake Gods. To say that is permitted in this country. This is permitted by the Constitution", Justice Nagaresh said.

When the Counsel submitted that as an effect of this movie, parents will now be scared of sending their children to hostels with Muslim girls, Justice Nagaresh said, "There is a Malayalam movie which depicts the sad story of nuns in a convent, so nobody will send their children to convents?" He added that if people start behaving based on movies, nobody will go to convents or ashrams because of how they are depicted in movies.

Justice Nagaresh said on a lighter note in the context of the statement that thousands of girls have joined ISIS, that it is for ISIS to come and say that it is not true.

Advocate Kaleeswaram Raj for yet another petitioner submitted that the novel question of whether there can be hate speech in the form of a work of art arises in this case. He cited judgments of the Apex Court on hate speech and hate crimes.

He also submitted that the assertion that the teaser does not require certification amounts disowning the teaser and admission that it is false. He submitted that the content of the film cannot be kept in mystery and the Court should watch the movie and form an opinion. He submitted that a committee should be formed to watch the film and cited a case law on the formation of such a committee.

The Court then asked Senior Advocate Ravi Kadam appearing for the producer and director, whether he is claiming the movie to be a true story. He submitted that it has been said in the disclaimer which has been certified by the Censor Board that it is inspired by a true story. He submitted that the trailer is part of the film and does not need a separate certification and that teaser is separate, made only for social media.

"They have artistic freedom. We have to balance that also", Justice Nagaresh observed.

"You may not continue. We are not inclined to grant any interim order", Justice Nagaresh said when Senior Advocate S. Sreekumar commenced his arguments on behalf of Sunshine Pictures Pvt. Ltd.

Ravi Kadam then read out the guidelines for certification and cited the Apex Court's judgment relating to the movie Padmavat and submitted that there is a presumption about the validity of the certificate. He said that the 32000 number was based on certain information that they received and it was put only in the teaser. He said that the teaser is not going to be continued and that his statement can be recorded. He also said that the same will also be removed from social media.

DSG S. Manu submitted that the interview of the former Chief Minister has already been removed from the movie.

Background

A Division Bench of the Madras High Court yesterday 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.

"We should be very careful in staying exhibition of films", said a Bench of Chief Justice DY Chandrachud yesterday while declining to entertain a petition, on mentioning, against the release of the movie.

On Thursday, the Apex Court had asked the parties who approached the Court against the movie to approach the Kerala High Court first, since it is already seized of a plea against the release of the movie.

The Kerala High Court on Tuesday refused to pass any interim order and 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.