Supreme Court Stays West Bengal's Ban On 'The Kerala Story' Movie; Producer Says No Authentic Data For Claims Of 32,000 Conversions

The Supreme Court on Thursday stayed the ban imposed by the State of West Bengal on the screening of the controversial film 'The Kerala Story'. The Court also recorded the statement made by Additional Advocate General Amit Anand Tiwari on behalf of the State of Tamil Nadu that there is no direct or indirect ban of the movie in the State. The Court further directed the State of Tamil Nadu to provide security to theatres & movie goers in the state.

The bench comprising CJI DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala posted the matters for further hearing in July 2023. The cases include the petition filed by the film maker against the West Bengal ban and the alleged shadow ban in Tamil Nadu and also petitions filed by others challenging the Kerala High Court's refusal to stay the screening of the film. The bench will also take a call on whether they should watch the film to ascertain if it is offensive.

In the interim order, the bench observed that the decision of the West Bengal Government prima facie suffers from overbreadth.

During the hearing, the bench also questioned the claim made by the film that 32,000 women from Kerala have been deceitfully converted into Islam and recruited to ISIS. Senior Advocate Harish Salve, appearing for the film producer, agreed to clarify in the disclaimer that "there is no authentic data available to back up the suggestion that the figure of conversions is 32000 or any other established figure". He said that the disclaimer will be added by 5 PM on May 20. The disclaimer will clarify that the film represents a fictionalised version of subject matter.

Arguments of producer

Senior Advocate Harish Salve, appearing for the film producer Sunshine Productions, referred to the State of West Bengal's affidavit, which stated that shadow surveillance by the state police in theatres revealed that people, after watching the film, were making communal statements against Muslims and that the film was disrupting communal harmony. Salve said that the State's decision was based on certain reports of intelligence officers who watched the movie.

"They pick up 12-13 people, who say that the movie is terrible and will cause riots", Salve said. He also read out an annexure to the State affidavit which indicated that there are chances of clashes between extremists who support and oppose the movie. Salve further said that the West Bengal affidavit mentioned an incident of violence in Maharashtra, allegedly sparked by an Instagram post about the movie. But Maharashtra has not banned the movie, the senior counsel higlighted.

He also cited the Supreme Court judgments relating to "Aarakshan" and other films, which hold that the State cannot sit in appeal over the certification granted by the Central Board of Film Certification and stop the movie exhibition by citing law and order problems. 

As regards Tamil Nadu, Salve said that there is a "defacto ban". He refuted the Tamil Nadu Government's claim that the multiplexes withdrew the film due to poor audience reception. For that, Salve showed documents regarding the theatre collections from Tamil Nadu during the first two days, which evidence that the film was running in packed halls. "I want a direction that adequate security is given by the State and that there is no informal messaging by the State the film should not be screened", he said.

"Today I have a valid censor certificate. Two Courts(Kerala and Madras HCs) have declined interim order against it", Salve said.

He also cited the judgment authored by Justice Chandrachud in Indibly Creative in which the West Bengal Government was directed to pay a compensation of Rs 20 lakhs to a film producer whose film was unofficially banned. He further referred to Justice Chandrachud's judgment delivered as a Bombay High Court judgment in F.A. Picture International v. Central Board of Film Certification which directed the certification of a movie on Gujarat riots.

"A controversial topic can be only depicted in a controversial manner..You can't just say that this is hurting the sentiments of the community..you cannot only have liberal thoughts..exaggeration, whether in written work, painting or anything, is entirely a part of creativity....art has to be provocative", Salve advanced.

The film has a disclaimer stating that it is inspired by true events as narrated by video testimonials of real victims and families and cinematic liberties have been taken to fictionalise and dramatize the events.

"There was a disclaimer which said the claim of 32,000 women being converted, that teaser was taken away. The movie does not give the figure of 32,000", Salve said. This submission was opposed by Senior Advocate Gopal Sankaranarayanan(for West Bengal Police), who asserted that the movie does make such a claim.

Arguments of West Bengal

Senior Advocate Dr.Abhishek Manu Singhvi, appearing for West Bengal Government, told the bench that the decision was taken to preserve public peace.

"You're saying that ban of the film is on the basis of 13 people...you get any 13 people they'll say ban any movie. Unless you're showing them cartoons...", CJI said.

"Section 6 (of the West Bengal Cinema Regulation Act ) cannot be utilized to put a premium on pubic intolerance", CJI Chandrachud remarked. Singhvi highlighted that all the decisions cited by Salve related to pre-screening bans imposed by the States. In this case, the decision was taken post-screening, after analysing inputs on the basis of the screening of the film for three days.

Singhvi asserted that the State has the duty to act to prevent breach to public peace. When CJI pointed out that the film is running in the other parts of the country, Singhvi replied that the demographic profile of State is different. CJI then said that the power should be exercised in a proportional manner, preventing the screening in places where problems are likely, instead of imposing a blanket ban across the state.

"You can't make fundamental rights be dependent on public display of emotion. Public display of emotion has to be controlled. You don't like it, don't see"., CJI said.

Singhvi urged the bench to see the teaser of the movie, which he said was highly offensive. The same things are stated in the movie as well, he added.

"What is the point of removing the teaser? The movie says 32000 women are missing. The figure is 3", Singhvi stated.

"State of WB has no issue with you watching the movie in your home on your mobiles, OTT. Our objection is to public exhibition of the movie", he added while highlighting that the statutory power was validly exercised with application of mind on the basis of intelligence reports on the basis of three days of running of the film

Senior Advocate Gopal Sankaranarayan, appearing for West Bengal Police, said that State cannot "turn a blind eye" to the provocative messages and that the State has the duty to protect the interests of minorities.

"If you're making propaganda films and claiming that it is not fiction and it is a fact and saying that you've verified it, then the responsibility is very different than a pure fiction movie", he said while referring to propaganda movies helping Hitler. Reference was also made to the order of the Supreme Court banning the telecast of "UPSC Jihad" shows of Sudarshan News TV on the ground that they were demonising Muslim community.

Bench questions 32,000 figure

At this juncture, CJI Chandrachud asked Salve about the 32,000 figure and said it is a "distorted figure". "Mr Salve, this 32000 is a distortion of facts. Address this...", he said.

Salve said that it will be clarified in the film disclaimer that there is no authentic figure available.

Senior Advocate Kapil Sibal, appearing for Jamiat Ulema-i-Hind, said that the dialogues in the film are much worse and cited certain offensive remarks in the movie.

"They're saying unless you spit you won't go to Allah...Then see the discussion of Maulvis. They show Muslim men talking about luring women and saying it necessary, impregnate them! This is what they're saying"., Sibal said.

Sibal urged the bench to watch the film. "Please watch the film. There is no point in legal sophistry. When you watch it you will see its impact. It impacts millions of people. Art form is also subject to Article 19(2)", Sibal said.

"We will have to see if we have to see the film", CJI said. 

Senior Advocate Huzefa Ahmadi also cited certain portions of the film which he said were problematic. He said that adding a disclaimer is not effective as it is like the statutory warning on alcohol and cigarettes.

"The movie starts with "fight the non believers" said by a Muslim man...Another scene shows Muslim clerics talking about how they can lure Hindu women and take them to Syria, if necessary, they can impregnate them..They also say nationalism is a sin and that being a Muslim is the only identity...Another scene shows remarks against Shiva and Rama. I'm not reading it because i find it difficult to read. These are attributed to a Muslim. The consequence of that is- the hate generated- that is to be borne into mind", Ahmadi said.

"Don't see it only from the perspective of physical violence, but also from the hate that is generated. It translates to other consequences, a person may not employ one from the community, may not rent out a house....", Ahmadi said while highlighting the Constitutional principle of fraternity.

In the last hearing, the CJI had asked the State of West Bengal why the film was banned in the State when it had been released in the rest of the country. 

Counter Affidavits by States

The state of Tamil Nadu in its counter affidavit refuted the claims of the makers and stated that they have made deliberate false statements implying that Tamil Nadu has prevented the public exhibition of the film. As per the affidavit, the film in Hindi was released in 19 multiplexes in the state of Tamil Nadu on its release date, that is, May 5 2023. Additionally, there was no order banning the screening of the film in the State and the State has taken all steps to safeguard the freedom of speech and expression of the makers of the movie as guaranteed under Article 19(1)(a) of the Constitution of India. However, as per the affidavit, Multiplex owners themselves took the decision to stop screening the film from May 7 2023 in view of "the criticism received by it/ lack of well-known actors/poor performance/Poor audience response."

Defending the ban imposed on the controversial movie, the State of West Bengal told the Supreme Court in its affidavit that the film is based on “manipulated facts and contains hate speech in multiple scenes that may hurt communal sentiments and cause disharmony between the communities”.

The State Government said that it took the decision to ban the public exhibition of the film invoking its statutory power under Section 6(1) of the West Bengal Cinema Regulation Act 1954 based on intelligence reports that the hate speech in the multiple scenes in the film "may hurt communal sentiments and cause disharmony between the communities which will eventually lead to a law and order situation".

Background

On May 8, West Bengal Chief Minister Mamta Banerjee had announced the decision to ban the screening of the movie "to avoid any incident of hatred and violence, and to maintain peace in the state". The Government invoked the powers under Section 6(1) of the West Bengal Cinemas (Regulation) Act, 1954 for this.

Challenging this decision, the film makers approached the Supreme Court invoking Article 32 of the Constitution, contending that the State Government has no power to ban a movie which has been certified for public viewing by the Central Board of Film Certification. The petitioners contend that the State Government cannot cite law and order issues to stop the screening of the movie, which will result in the violation of the fundamental rights guaranteed to them. The petitioners have also challenged the validity of Section 6(1) of the West Bengal Cinemas (Regulation) Act, 1954 on the ground that it is conferring arbitrary and unguided powers to the State Government.

With respect to Tamil Nadu, the petitioners allege that the exhibitors in the State withdrew the film after the informal messaging by the State authorities.

The movie has courted controversy over allegations that it is tarnishing the entire Muslim community and the Kerala state while portraying the story of women who were recruited to ISIS through deceit.

On May 5, a division bench of the Kerala High Court comprising Justice N. Nagaresh and Justice Sophy Thomas had refused to stay the exhibition of the film. The Court observed that the film only said that it was 'inspired by true events' and that the Central Board of Film Certification (CBFC) had certified the film for public viewing. The bench also watched the trailer of the film and opined that there was nothing offensive to any particular community in it. The bench also noted that none of the petitioners had watched the film and that the producers had added a disclaimer that the film was a fictionalised version of events. However, the High Court also recorded the submission of the producer that the teaser of the movie, which claimed that over 32,000 women from Kerala were recruited to ISIS, will be removed from their social media accounts.

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