On Thursday, 18th May 2023, the Supreme Court intervened and halted the ban imposed by the West Bengal government on the screening of the film ‘The Kerala Story’. Additionally, the Court acknowledged the statement made by Additional Advocate General Amit Anand Tiwari on behalf of Tamil Nadu, affirming that there is no explicit or implicit prohibition of the movie in the state. Furthermore, the Court issued directions to the State of Tamil Nadu to ensure the safety of theatres and moviegoers by providing adequate security.
The bench, headed by Chief Justice of India DY Chandrachud and comprising Justices PS Narasimha and JB Pardiwala, scheduled the next hearing for July 2023. The matters to be heard include the filmmaker’s petition against the ban imposed by West Bengal, the alleged shadow ban in Tamil Nadu, and other petitions challenging the Kerala High Court’s decision to not stay the film’s screening. The bench will also consider whether it should personally view the film to determine if it contains any offensive content.
In its interim order, the bench noted that the decision of the West Bengal Government appears to suffer from being too broad in scope.
During the hearing, the bench raised questions regarding the film’s claim that 32,000 women from Kerala have been converted to Islam and recruited by ISIS. Senior Advocate Harish Salve, representing the film producer, agreed to include a clarification in the disclaimer stating that there is no verifiable data supporting the claim of 32,000 conversions or any other specific figure. He stated that the disclaimer will be added by 5 PM on May 20. The disclaimer will specify that the film presents a fictionalized version of the subject matter.
Advocate Harish Salve argued for the makers of ‘The Kerala Story’
During the proceedings, Senior Advocate Harish Salve, representing the film producer Sunshine Productions, cited the affidavit filed by the State of West Bengal. The affidavit mentioned that surveillance conducted by the state police in theatres revealed instances where individuals, after watching the film ‘The Kerala Story’, made communal statements against Muslims, thus disrupting communal harmony. Salve highlighted that the State’s decision was influenced by reports from intelligence officers who had viewed the movie.
“They pick up 12-13 people, who say that the movie is terrible and will cause riots”, Salve said. During the proceedings, Harish Salve also brought attention to an annexure attached to the State’s affidavit, which indicated the possibility of clashes between supporters and opponents of the film. Additionally, Salve pointed out that the West Bengal affidavit mentioned a Maharashtra incident of violence allegedly linked to an Instagram post about the movie, even though Maharashtra had not imposed a ban on the film ‘The Kerala Story’.
Salve referred to previous Supreme Court judgments, including those related to the film “Aarakshan,” emphasizing that the State cannot challenge the certification granted by the Central Board of Film Certification and prohibit the exhibition of a movie by citing law and order concerns.
Regarding Tamil Nadu, Salve argued that there is a de facto ban on the film. He contested the Tamil Nadu government’s claim that the multiplexes withdrew the film due to a lack of audience reception. To support his argument, Salve presented documents showing the theatre collections in Tamil Nadu during the first two days, which demonstrated that the film was running to 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 also referred to the judgment authored by Justice Chandrachud in the case of Indibly Creative, where the West Bengal Government was ordered to provide a compensation of Rs 20 lakhs to a film producer whose film faced an unofficial ban. Harish Salve also cited a judgment delivered by Justice Chandrachud during his tenure at the Bombay High Court in the case of FA Picture International vs Central Board of Film Certification. The judgment emphasized that a controversial subject can only be depicted in a controversial manner and that art, including written works and paintings, often involves exaggeration as part of creativity. Salve argued that artistic expression should be provocative and that the mere claim of hurting community sentiments cannot suppress liberal thoughts.
The film includes a disclaimer stating that it draws inspiration from true events as narrated by video testimonials of real victims and families. It acknowledges that certain cinematic liberties have been taken to fictionalize and dramatize these events. Harish Salve clarified that the initial claim of 32,000 women being converted was removed from the teaser, and the film itself does not provide a specific figure for conversions. However, Senior Advocate Gopal Sankaranarayanan, representing the West Bengal Police, contested this submission and maintained that the movie indeed makes such a claim.
West Bengal government imposed a ban on ‘The Kerala Story’
On May 8, the Chief Minister of West Bengal, Mamata Banerjee, announced the decision to prohibit the screening of ‘The Kerala Story’ in order to prevent any incidents of hatred, and violence, and maintain peace in the state. The Government justified this action by invoking the powers granted under Section 6(1) of the West Bengal Cinemas (Regulation) Act, 1954.
In response to this ban, the filmmakers approached the Supreme Court, invoking Article 32 of the Constitution and arguing that the State Government lacks the authority to ban a movie that has received certification for public viewing from the Central Board of Film Certification. The petitioners contend that the State Government cannot use law and order concerns as a justification to halt the movie’s screening, as it would result in a violation of their fundamental rights. Furthermore, the petitioners have raised objections to the validity of Section 6(1) of the West Bengal Cinemas (Regulation) Act, 1954, asserting that it confers arbitrary and unguided powers upon the State Government.
Regarding the situation in Tamil Nadu, the petitioners allege that the film exhibitors in the state withdrew the movie following informal communication from the state authorities. The film has been embroiled in controversy due to allegations of tarnishing the reputation of the entire Muslim community and the state of Kerala while portraying the story of women who were deceitfully recruited into ISIS.
High Court had already cleared the path for ‘The Kerala Story’
On May 5, a division bench of the Kerala High Court, consisting of Justice N. Nagaresh and Justice Sophy Thomas, declined to grant a stay on the screening of the film ‘The Kerala Story’. The Court observed that the film explicitly mentioned being “inspired by true events” and had received certification from the Central Board of Film Certification (CBFC) for public viewing. After watching the film’s trailer, the bench stated that it did not find anything offensive towards any specific community. The bench also took note that none of the petitioners had actually watched the film and acknowledged that the producers had included a disclaimer stating that the film was a fictionalized portrayal of events.