'The Kerala Story': SC Stays West Bengal's Ban, Makers Told To Add Disclaimer

CJI directed the makers to give a proper disclaimer regarding the unsubstantiated figures mentioned in the film.

The Supreme Court of India on Thursday, 18 May, issued a stay on the ban imposed by the West Bengal government on The Kerala Story.

(Photo: The Quint)

The Supreme Court of India on Thursday, 18 May, issued a stay on the ban imposed by the West Bengal government on The Kerala Story.

"Prohibition by West Bengal is not tenable. The order of the additional secretary of WB shall remain stayed," said Chief Justice of India DY Chandrachud.

As for the alleged 'shadow ban' in Tamil Nadu, the apex court said:

"In TN, additional security can be provided for every cinema hall and requisite arrangements can be made for moviegoers who want to see the film. No steps shall be taken by TN or its officers or instrumentalities, including police, to prevent the screening of the film."

CJI Chandrachud also directed the makers of The Kerala Story to give a proper disclaimer regarding the unsubstantiated figure of '32,000' mentioned in the film, by 5 pm on 20 May.

"The disclaimer shall say: there is no authentic data to back up the suggestion that the figure of converted people is 32,000 or any other figure; the film represents a fictionalised version of the subject matter," the CJI told the makers.

The top court was hearing a plea filed by the producers of the contentious film, challenging its ban in West Bengal and its 'de-facto ban' in Tamil Nadu.

Earlier, on Tuesday, 16 May, an affidavit had been filed by the West Bengal government defending the ban, contending that the film presents "manipulated facts" and "contains hate speech in multiple scenes that may hurt communal sentiments and cause disharmony between the communities."

The Tamil Nadu government had also filed a counter affidavit to the makers' plea on Monday, 15 May, stating that they were making false statements implying that the state has prevented the public exhibition of the film, Live Law reported.

Here's a rundown on the case so far.

What Have the Makers Said?

The WB government had issued a ban on the public exhibition of the film on 8 May "to maintain peace in the state," whereas in TN, the multiplex association had withdrawn the film's screening on 7 May, citing fear of protests and poor audience turnout.

On 9 May, the makers of the film, Sunshine Productions, had moved the Supreme Court challenging the ban. They had invoked Article 32 of the Constitution to argue that a state government – like West Bengal – lacks the authority to prohibit a movie that has received certification from the Central Board of Film Certification (CBFC) for public exhibition.

They had also challenged the alleged 'shadow ban' in Tamil Nadu, claiming that it was the state government's "informal messaging" that prompted the multiplexes to withdraw the film.

Appearing for the filmmakers on Thursday, senior advocate Harish Salve reiterated this argument, saying that the ban goes against the certification given to the film. "Nobody has gone into an appeal against the certification. So, I'm saying that the ban is in the teeth of valid certification."

He added:

"There is a disclaimer. It says that the film was inspired by true events as narrated by victims and their families in their video testimonials... the film doesn't claim accuracy or factuality of events..."

Referring to the contested figures in the film, he went on to say that "exaggeration, whether in written work, painting, or anything, is entirely a part of creativity."

CJI Chandrachud, however, pointed out that the figure 32,000 is "distortion of facts" and that the makers must carry a disclaimer saying that it is unsubstantiated. Salve responded, saying: "I will clarify in the disclaimer that there is no authentic data available."

Why Was the Film Banned in WB?

Announcing the ban on 8 May, West Bengal Chief Minister Mamata Banerjee had asked the chief secretary to ensure that the film was withdrawn from theatres across the state.

Calling it a "distorted" film, the chief minister had said:

"Why did they make Kashmir Files? To humiliate one section. What is this Kerala Files? If they can prepare Kashmir files to condemn the Kashmiri people... now they are defaming Kerala state also. Everyday they are defaming through their narrative."

Mamata Banerjee, addressing the media

In its affidavit to the Supreme Court on Tuesday, the WB government further said that "during surveillance, it has been observed that the audience makes very objectionable comments whenever they see a particular scene where Hindu or Christian girls are tortured."

"It has also been observed that while coming out of movie halls, people discuss among themselves to limit their interaction with Muslims and or that these Muslims ought to be taught a lesson," the affidavit said.

The affidavit pointed out 13 such instances of people speaking about the film, quoting intelligence reports.

However, while hearing the case on Thursday, CJI Chandrachud rapped the WB government, saying:

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

Issuing a stay on the ban, he further said, "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."

What Happened in TN?

On 7 may, the TN Multiplex Association had said it would withdraw the film from theatres. M Subramaniam, the president of the Tamil Nadu Theatre and Multiplex Owners Association, was quoted by PTI as saying:

"The film was only shown in a few multiplexes owned by pan-India groups, mostly PVR. Locally-owned multiplexes had already decided not to show the film, as it did not have any popular stars. In Coimbatore, for instance, there were two shows so far... Even those did not do well. Given that, theatres decided that it was not worth going through the threat of protests and such."

But during the SC hearing, the TN government categorically said it had not imposed a ban on the film in the state. Representing the government, advocate Amit Anand Tiwari said, "There is no question of direct or indirect ban in Tamil Nadu."

Earlier, in the affidavit submitted to the SC, the government had said it exercised no control over the decisions made by the multiplex owners. The affidavit had claimed the multiplex owners' decision was based on poor audience turnout and the controversy surrounding the film.

The Supreme Court told the state government, "No steps whatsoever, whether tacit or express, formal or informal, shall be taken by the State of Tamil Nadu or by any of its officers or instrumentalities including the police to prevent the screening of the film."

Meanwhile, a division bench of the Madras High Court had rejected the writ petition, challenging the certification granted by the CBFC to The Kerala Story. A division bench of the Kerala High Court, while admitting a similar petition, had declined to grant interim relief.

All these petitions will be heard by the Supreme Court on 18 July.