The Kerala high court today (February 27) lifted the interim stay imposed on the release of The Kerala Story 2: Goes Beyond by a single-judge of the high court, paving the way for its release from the evening show onwards. Consequently, the film opened around 7 p.m. all over.
A division bench of Justices S.A. Dharmadhikari and P.V. Balakrishnan lifted the stay imposed by single-judge Justice Bechu Kurian Thomas. On February 26 at 3 p.m., Justice Thomas had stayed the release for 15 days while asking the Central Board of Film Certification (CBFC) to examine the representations against the movie. Producer Vipul Shah went in appeal and the division bench convened an urgent special sitting at 7.30 p.m. the same day to hear it. After a detailed hearing, which lasted over two hours, the division bench reserved its verdict in the matter. The order was pronounced today (27th) at 4 p.m.
The bench opined that since the CBFC had watched the film in its entirety, there was a presumption that the decision to grant certification was taken after comprehensive analysis. In case the movie spurs communal tension, it is the duty of the State’s law and order machinery to address the same, the bench said. “The afore decisions thus clearly stand to advice that once a certificate has been issued, there is, prima facie, a presumption that the authority concerned has taken into account all the guidelines, including public order, and that if, due to the release of the movie, any issue of public order arises, it is the duty of the state to maintain it. This presumption thus includes that the film has been judged in its entirety from the point of view of its overall impacts, by taking into consideration the principles enunciated in section 5B of the Cinematograph Act, 1952 and the relevant guidelines,” the Court said in its order. The division bench added, “In such circumstances, merely on the basis of a few clippings and without viewing the movie, the finding of the learned single judge that the guidelines for certification have not been borne in mind by the CBFC while granting certification, cannot be countenanced.”
It may be mentioned here that the single-judge had passed his order on two petitions challenging the film’s release on the grounds that it misrepresented Kerala and could incite communal disharmony.
One petition was filed by Kannur native Sreedev Namboodiri, who alleged that the title of the The Kerala Story sequel and promotional materials, including the teaser and trailer, contained themes and dialogues capable of inciting violence and unfairly stigmatised the state of Kerala. Namboodiri objected to the teaser’s closing line ‘Ab sahenge nahin… ladenge’ (we will not tolerate it anymore, but will fight), arguing that it amounted to a call for confrontation capable of triggering communal violence.
The other petition by Freddie V. Francis sought a ban on the film’s release and challenged the use of the term ‘Kerala’ in the title, arguing that it falsely associated the state with terrorism and forced religious conversion, despite the film’s story involving characters from other states. He termed this as ‘marketing of hate’ and questioned the claim that the film was based on true events.
Justice Thomas passed an interim order staying the release. He opined that prima facie there was an absence of application of mind by the CBFC while granting certification. He, therefore, directed the CBFC to consider the revision petitions filed by the petitioners before the Board within a period of two weeks. Pertinently, the single-judge ordered that the film shall not be released for 15 days.
Justice Thomas said that while he was usually hesitant when it came to interfering with the release of films, the court had to step in when the alleged content of the film could have the genuine potential of inciting communal disharmony.
Producer Vipul Shah then approached the division bench seeking an urgent hearing of its appeal, emphasising that the film was slated for international release on Friday, February 27.
When the appeal was taken up, Justice Dharmadhikari said that he granted permission to file appeal in the morning under the impression that the single-judge had passed an order. “We had no idea that the judgement was yet to be delivered. It was only delivered in the afternoon,” the judge said.
The primary contentions raised by senior advocates Neeraj Kishan Kaul and Elvin Peter on behalf of the producers was that the petitioners lacked locus standi to maintain a regular writ petition as their grievance was in the nature of a PIL (Public Interest Litigation). They also submitted that the CBFC certification carried a strong presumption of regularity and that the film contained a prominent disclaimer and depicted a multi-state narrative, not one confined to Kerala. They also argued that pre-release restraint on a certified film is the most extreme form of censorship and that precedents stand staunchly against allowing such commercial disruption of free speech.
The division bench in its order cited the Supreme Court’s judgment in Viacom18 Media Private Limited, in which the top court held that once the certificate has been issued, there is prima facie a presumption that the authority concerned has taken into account all the guidelines including public order. It also referred to the case Atul Mishra v. Union of India & Others, in which the title of the Netflix film Ghooskhor Pandat was challenged by members of the Brahmin community. In that case, the top court observed that once the expert body had considered the impact of the film on the public and had cleared the film, it was no excuse to say that there may be a law and order situation due to screening of the movie.
Based on these precedents and considering the fact that Justice Thomas and the petitioners had only watched the teaser and trailers of the movie, the bench deemed it fit to stay the single-judge’s order.