Kerala High Court lifts stay on release of Kerala Story 2 movie

The Kerala High Court on Friday vacated the interim stay imposed by a single-judge of the High Court on the release of the movie 'Kerala Story 2 - Goes Beyond'. [Vipul Amrutlal Shah v. Freddy V Francis & Ors.]

A Division Bench of Justices SA Dharmadhikari and PV Balakrishnan lifted the stay imposed by single-judge Justice Bechu Kurian Thomas.

Justice Thomas had at 3 pm on Thursday, February 26, 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.

The Division Bench convened an urgent special sitting at 7.30 pm the same day to hear the appeal filed by producers of the movie. After a detailed hearing which lasted over two hours, the Bench reserved its verdict in the matter.

It proceeded to pronounce its verdict at 4 pm today.

The Bench opined that since the CBFC had watched the movie in its entirety, there is 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 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.

Under these circumstances, the single-judge's decision to conclude that there was prima facie non-compliance with guidelines, that too on the basis of watching just the teasers and trailers of the movie, cannot be accepted, the Bench concluded.

"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," the order stated.

The single-judge had passed his order on two petitions chalenging the release of the movie on the grounds that the movie misrepresents Kerala and 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.

Justice Thomas passed an interim order staying the release opining 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 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.

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 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 Viacom 18 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 & Ors. in which the title of the Netflix film Ghooskhor Pandat was challenged by members of Brahmin community. In that case, the top court observed that once the expert body has considered the impact of the film on the public and has cleared the film, it is 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 the 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.

Advocates Maitreyi Sachchidananda Hegde, Rizla KM, Deepika K Sasi appeared for Namboodiri.

Advocates Sreerag Shylan, Ferha Azeez and Devananda S represented Francis.

The producers were represented by Senior Advocates Neeraj Kishan Kaul and Elvin Peter and advocates Ameet naik, Madhu Gadodia, Nithyesh, Vaibhav, Jasmeet.

[Read Order]