When controversies rose over the content of The Kerala Story, a film that is to release this Friday ( May 5), Chief Minister of Kerala Pinarayi Vijayan said that legal action will be sought against such “anti-social” work. Angered over the theme of the film, which from the teaser and trailer seems to be a rather propagandist portrayal of Kerala, many voices from the state have called for a ban on the screening. Despite being condemned for its exaggerated numbers and apparent targeting of Muslims, however, legal experts say that the film cannot be banned though it can amount to hate speech.
On Tuesday, May 2, while hearing a petition alleging that The Kerala Story amounts to hate speech, a bench of the Supreme Court refused to stay the release of the film. The first teaser of the film claimed that the film would tell the true story of 32,000 women from Kerala who converted to Islam and were taken to ISIS (Islamic State of Iraq and Syria) terrorist camps. This was temporarily edited to “thee young girls” after many people called out the inaccuracy of the account, alleging it to be a propaganda film of the Sangh Parivar.
However, the film has already been certified by the Central Board of Film Certification (CBFC), the only body in the country that reserves the right to allow/disallow the screening of a film. Reports suggest that the film was issued an A certificate after a few scenes were deleted.
“The film should have been subjected to a judicious censorship and the clear instances of misinformation and hate speech should have been directed to be expunged. I wonder how the censor board cleared it in the present form. It needed rigorous legal scrutiny, which has not happened for the reasons best known to the authorities,” said Supreme Court lawyer Kaleeswaram Raj to TNM.
As we write this, the Kerala High Court is hearing another plea for a stay on the release of the film, in which Kaleeswaram Raj is appearing for the petitioner. He told the bench that they were not seeking a total ban but that there should be more cuts made by the CBFC. The trailer of the film claimed that it is based on true stories, and it is an insult to the state and its people, the advocate said. When the bench asked if art can be conflated with hate speech, Kaleeswaram said, "If the court feels this is not hate speech then nothing else would be considered hate speech."
Kerala High Court is hearing a plea seeking a stay on the release of the film Kerala Story pic.twitter.com/mtYKz5K4zo
— Bar & Bench (@barandbench) May 2, 2023
When TNM asked if a work of fiction can amount to hate speech, Kaleeswaram said it can. “It is a propaganda film mixing facts, non-facts, and fiction. It can amount to hate speech in the broader sense of the term. Hate speech happens in various forms. That's how we understand hate speech, judicially,” he said.
Hate speech does not have a clear definition in law, says Manu Sebastian, Managing Editor of Live Law. But there are provisions in the Indian Penal Code, such as 153A and 153B that address it. “This will include any statement, speech, or expression that promotes enmity between groups, or which portrays a particular community as dangerous and anti-national. In the case of a work of fiction, if the entirety of the work has the effect of demonising a particular group and promoting some sort of communal hatred, then it can amount to hate speech. That is why the Cinematograph Act says that such films should not be certified,” Manu adds.
Another issue raised by the critics of the film is the hugely exaggerated number it showed in its teaser – 32,000 in place of the three known cases of women who had converted and joined the ISIS. Advocate Kaleeswaran says that “it is not merely problematic, it could be pernicious.”
That is how propaganda films work, Manu points out. “They pick some facts and present them in an exaggerated manner. They call it fiction. The effect of such a film is what makes it problematic. If the depiction can tarnish a whole community or disturb the communal peace of a state, it amounts to hate speech and it can be a criminal offence. Someone can then lodge a First Information Report (FIR) against it. But for that, a person has to watch the movie,” Manu says.
Even as there have been calls for a ban on the film, many have also pointed out the importance of freedom of expression in a democracy. Kaleeswaram and other advocates agree that in a democracy, there is no place for a ban on creative work. “I don't think that a total ban is constitutionally legitimate. Freedom of expression needs protection along with the rule of law,” Kaleeswaran tells us.
Manu clarifies that any such call can only be taken by the CBFC, using the clauses of the Cinematograph Act. “There are clear guidelines about not giving certificates to films that promote communal enmity. When there is a body exclusively constituted for approving a film, the state government cannot take a call on it. What they could do is challenge the CBFC’s decision at a court,” he says.
A few state governments had banned the release of the 2018 Hindi film Padmaavat. However, when the makers challenged the ban at the Supreme Court, it was ascertained that a certified film cannot be banned by a state. During the release of the controversial film MSG-2 The Messenger, the Delhi High Court did not entertain a plea asking for its ban. The plea said that the film demonised the tribal community, but the court pointed out that the film was a fantasy.
Even in Kerala, there is precedence of courts rejecting pleas for bans. Only last year, the Kerala High Court dismissed a plea asking for the removal of the Malayalam film Churuli from a streaming platform. The petitioner cited the use of too much foul language as a reason for the plea. The court, while dismissing the plea, made a curious intervention by asking the police to watch the film and submit a report on the use of abusive language.
Citing the example of Churuli, Advocate Shukkur, who debuted as an actor last year, said that asking for a ban does not suit a democratic system. He reiterated what Manu said about the CBFC’s exclusive right in allowing the screening of a film. “Ban is not a way out. Even when the BBC documentary (on the 2002 Gujarat riots) that came out recently was banned by the Union government, didn’t people find a way to watch it?” Shukkur asks.
Interestingly, Shukkur called out the bluff of the film’s teaser (which claimed that 32,000 women had converted and joined ISIS) in a Facebook post, by promising an amount of Rs 1 lakh to anyone who could prove it. He then named the three known cases of women from Kerala who joined ISIS, as a fact-checking measure.