A Division Bench of the Kerala High Court on Thursday convened an urgent sitting at 7.30 pm to hear the appeal filed by producers of the movie 'The Kerala Story 2 – Goes Beyond' challenging the stay imposed by a single-judge of the High Court on the release of the movie. [Vipul Amrutlal Shah v. Freddy V Francis & Ors.]

A Division Bench of Justices SA Dharmadhikari and PV Balakrishnan heard the parties for two hours before reserving its verdict.

During the hearing, the Division Bench remarked that the single-judge seemed to have exceeded his jurisdiction in hearing the matter.

"Order passed by any bench outside jurisdiction will be automatically nullified," the Division Bench remarked.

The Court also opined that the single-judge order seemed to have been passed in a haste.

"Everything has been done in haste. Nobody had time to apply their mind," Justice Dharmadhikari remarked.

The movie is slated for release tomorrow.

Single-judge Justice Bechu Kurian Thomas had at 3 pm today stayed the release of the movie for 15 days while asking the central Board of Film Certification (CBFC) to examine the representations against the movie.

This led to the present appeal by the movie's producers before the Division Bench.

'The Kerala Story 2 – Goes Beyond' is a sequel to the controversial Hindi film, 'The Kerala Story', which portrayed the alleged recruitment of women from Kerala into the Islamic State of Iraq and Syria (ISIS).

The petitions before the Kerala High Court arose amid continuing controversy surrounding the sequel, much like the earlier film, which drew widespread criticism for its depiction of religious radicalisation of women and its alleged impact on the image of Kerala.

The petitioners moved the Court contending that the movie misrepresents Kerala and its release could incite communal disharmony.

One petition was filed by Kannur native Sreedev Namboodiri, who alleged that the sequel movie's title 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.

Another 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 is based on true events.

At 3:00 pm today, Justice Thomas passed an interim order staying the release while considering petitions challenging the CBFC certification granted to the movie.

The single-judge opined that prima facie there was an absence of application of mind by the CBFC while granting certification. It, 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 movie shall not be released for 15 days.

Justice Thomas said that while he is usually hesitant when it comes to interfering with the release of films, the Court has to step in when the alleged content of the film could have the genuine potential of inciting communal disharmony.

The producers of the movie then approached the division bench seeking an urgent hearing of its appeal, emphasising that the movie 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 judgment was yet to be delivered. It was only delivered in the afternoon," the judge said.

Senior Advocate Neeraj Kishan Kaul, appearing for the producers, said that the single-judge order is not clear as to why CBFC decision to certify the film was termed to be "manifestly arbitrary".

"The petition was filed 16 days after the teaser was released. Kerala Story 1 faced a similar order and after the movie was finally released it went on to win National Awards. The movie portrays events from across India. The single judge says there is manifest arbitrariness in CBFC decision to grant certification. But the order has no discussion of what this arbitrariness is," Kaul said.

Kaul said that portrayal of social evil in a religion will scandalise the faith.

"Today we are 75 years into the Republic . Are we so frail in this country with greatest harmony that we can say that portrayal of social evil in one religion or a portion of a religion, will scandalise the faith and tenets of religion? My lordships have held time and again that the storyline is the prerogative of the storyteller," Kaul contended.

Kaul also rebutted the argument that the movie denigrates Kerala.

"There is nothing in the movie to denigrate the state of Kerala. It is a state loved by everyone. It just shows a protagonist emerging from the State and it goes beyond the state. If a set of people of a religion are following a social evil, and that social evil is portrayed, it cannot be said it is an insult or denigration of a religion," he submitted.

Further, he said that the movie's title says "Goes Beyond" makes it clear that the movie tells the story beyond Kerala.

"First movie was Kerala Story. Right till Supreme Court, there was attempt to not get it released. Kerala was there in that title. In the first one the protagonist was only from Kerala. In second one there are protagonists from other states too. That is why the title says 'goes beyond'," Kaul argued.

He also highlighted the commercial impact the stay on the movie could have.

"Supreme Court has said that you cannot commercially destroy and disrupt free speech and propagation of free speech. I have invested crores in this movie. I have over 1,500 theatre where it has to be released tomorrow. There are 355 theatres abroad," he argued.

He further said that other religions have also been subject to such scrutiny.

"If every other religion has been subjected to the same scrutiny when it came to making fun of Hindu gods and goddesses and Catholic priests, the courts have refused to interfere, in this case you cannot say revision must be considered by Centre or CBFC before release," Kaul contended.

Senior Counsel Elvin Peter, also appearing for the producer, said that the single-judge passed the stay order despite CBFC assurance to give a hearing to the petitioner.

"The CBFC counsel told the single judge that it would give the petitioners a video hearing today itself and pass orders. But the judge declined to accept the submission and passed the order staying the release for 15 days," it was argued.

"Everything has been done in haste. Nobody had time to apply their mind," Justice Dharmadhikari said.

"CBFC certification hasn't been set aside by the single judge. The producer has every right to exhibit the movie in theatres. Everything was rushed through in this case," Peter argued.

Kaul further argued that the single-judge could not have substituted the views of CBFC with his views.

"Single judge was not meant to substitute his view for that of an expert body which took a well analysed decision. It is not sitting as a court of appeal with extraordinary jurisdiction," Kaul contended.

He further said that if the movie is not allowed to be released tomorrow, there will be piracy.

"My last argument is that this order has to be stayed as we cannot commercially destroy free speech in this manner by such injunctions. Because of how digital servers are used for international release work, if it is not released tomorrow, there will be piracy everywhere," it was submitted.

"How can we decide this without watching the movie. When the single judge asked to watch the movie, you refused?" asked Justice Dharmadhikari.

"We were arguing on maintainability and locus. There is not an iota of evidence that Kerala is denigrated," Kaul maintained.

"Is this a public interest litigation? Then how did single-judge hear this? is this not out of roster," the judge remarked.

"Exactly my lord. Single-judge ought not have heard it," Kaul said.

He maintained that portrayal of an evil in a State does not denigrate the whole State.

"How does a social evil prevalent in a state denigrate a whole state? CBFC has taken a view that it does not denigrate the State at all. But learned single judge has taken a journey to say that there is contempt of religion," Kaul submitted.

"Order passed by any bench outside jurisdiction will be automatically nullified," the Bench remarked.

Advocate Maitreyi Hegde, appearing for the original petitioner, first addressed the Court on the issue of maintainability.

She emphasised that the petition is not a PIL.

"A person's identity and right to reputation which is protected constitutionally also includes where he is coming from. Article 15 recognised place of birth as one of the grounds that one cannot be discriminated on. This is what is being affected," she said in reference to the title of the movie.

"Are you not espousing the cause of all the people of Kerala," the Court asked.

"No my lord. There might be 100 others who have the same grievance but I am here because my right to reputation as a Malayali is being affected when the State has been shown in a bad light," Hegde replied.

Hegde referred to recent case where producers of the movie Ghooskhor Pandat agreed to change the film's title following objections from the Brahmin community.

"The name Kerala is not derogatory," said Justice Dharmadhikari.

"When the entire movie shows Kerala in a bad light, when it says that women here are being induced to terrorism, it is derogatory to the State. The single judge wanted to watch the movie but they refused. Maybe if they had agreed, the outcome may have been different. Maybe we would have withdrawn our objections," Hegde contended

She further said that there was no delay in approaching the Court.

"The interim order is only for 15 days stay. If the government considers my representation tomorrow and passes orders, they can move the court tomorrow to lift they stay. They have also argued that the petitions are at once premature and delayed. The teaser was released on Jan 31. We waited till trailer was released on 17 Feb. On Feb 19 I approached the High Court. That is a reasonable amount of time. If there is delay then it cannot be premature," she said.

On the first instalment of movie being allowed, Hegde said,

"There was a controversy after the posters of the first movie said 32,000 women in Kerala were radicalised. They had to admit to the court that it was wrong. They pulled teasers and added a disclaimer stating there weren't 32000 women."

"The fundamental argument is that the relief granted is only of interim nature. We have the locus to move the court. The parameters for injunction stand in favour of the petitioner. I am not arguing on merits. If my senior friends have arguments on merits, I will have further submissions," she further said.

Advocate Sreerag, appearing for another original petitioner, contended that the movie claims it is based on true events.

"On what grounds are they saying this is based on real events? If they let us watch the movie, maybe we could have found out. But they refused. We have submitted screenshots from the trailer showing these claims," he said.

"I am a person who is working abroad. My major interaction is with non Keralites. When a movie is being shown as a true story with Kerala in the title, it will affect me," Sreerag further said.

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