Thread by @LiveLawIndia

The Kerala High Court is set to hear the petitions challenging the release of the film 'The Kerala Story'.

#KeralaHC
#TheKeralaStory

The matter shall be heard by the Division Bench comprising Justice N. Nagaresh and Justice Sophy Thomas

#KeralaHC
#TheKeralaStory

The report on the previous hearing can be read here:

livelaw.in/high-court/all…

The matter has been taken up.

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Sr. Adv. Dushyant Dave is now making his submissions.
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Sr. Adv. Dave briefs the Court on the scenes in the trailer.
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Sr. Adv. Dave: I request your Lordships to allow screening of trailer. The impact of film today is much greater on minds of people today than books can ever be. This may create serious public law and order problem.
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Sr. Adv. Dave: Kerala is God's own country. Everyone loves coming to Kerala. The whole community is being demonized.
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Bench: What is there in the trailer that demonises the entire community?
Sr. Adv. Dave: I urge Your Lordships to see the Trailer.
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Sr. Adv. Dave refers to the SC order in the Sudharshan TV case, where the Muslim community was vilified.
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Bench: We will see the Trailer after hearing the parties.
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Sr. Adv. Dave now takes the Court through Sections 4 and 5 of the Cinematograph Act.
Dave: If you're going to defeat whole society..
Bench: Is there any allegation in the cinema?
Dave: Para 10 and 11 exactly says what the trailer says
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Justice Nagaresh: There is nothing against an entire society in the film. A statutory authority has already seen this and suggested cuts.
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Dave: It is against the sovereignty and integrity of India.
Justice Nagaresh: Why do you say so?
Dave: This country is founded on principle of secularism. Dr. Ambedkar said that liberty and equality is nothing without fraternity...
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Sr. Adv. Dave: Fraternity is something I urge your Lordships to keep in mind while examining. Fraternity in society is very important, it is part of the basic structure.
Justice Nagaresh: But this is not based on historical facts, it is a story.
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Sr. Adv. Dave: This is not a film based on facts. It is a clear case of 153A.
Justice Nagaresh: This is not history. It is fiction counsel. In Kerala we are so secular.
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Justice Nagaresh: There was a movie where a pujari spit on an ideal and no problem was there. Can you imagine? It is a famous award winning movie.
Dave: I have not seen that movie.
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Sr. Adv. Dave: Kerala is not like other states. I have love coming there. It is a beautiful society.
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Justice Nagaresh: There are umpteen movies in which Hindu sanyasis are seen as smugglers. Nothing happens. No one says anything. You may have seen such movies in Hindi and Malayalam.
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Sr. Adv. Dave: Your Lordships are right. But just because one wrong was permitted, doesn't mean another also has to be.
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Bench: The trailer was released in November. But you are coming now.
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Sr. Adv. Dave now takes the Court through Firoz Khan v. Union of India (Sudharshan TV Case)
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Sr. Adv. Dave: Please look at Para 11. Each statement in the trailer is false.
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Sr. Adv. Dave: Please see what is the purpose of the fiction. Purpose of fiction is to portray Muslim community as villains. Isolated incidents cannot be made to seem like the truth and made into a movie.
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Sr. Adv. Dave: the SC in Feroz Khan says an insidious attempt has been made to insinuate that the community is trying to infiltrate the civil services. To bring the community in hatred and disrepute.

livelaw.in/top-stories/br…

Justice Nagaresh: Mr. Dave, was this a movie? If it is fictional movie, it is a different thing.
Sr. Adv. Dave: Your Lordship, I am on legal principles, not the facts. It was a serial, a show, based on a fake narrative.
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Sr. Adv. Dave now refers to the decision in S. Rangarajan v. P. Jagjivan Ram (1989)
indiankanoon.org/doc/341773/
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Sr. Adv. Dave: If the Censor board ignores it duty, then this court has the power to interfere.
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Dave: Let us assume one or two incidents take place. You cannot glorify them. Let law take its course.
Bench: Are filmmakers trying to glorify or condemn?
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Sr. Adv. Dave: There is serious thought on impact. I am also a strong advocate of freedom, but if the freedom is likely to poison minds of innocent people and threaten public order, such freedom must be curtailed.
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Sr. Adv. Dave: I request your Lordship to see the film, satisfy your lordships conscience. I respectfully beseech your Lordships to intervene and stop the telecast.
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Sr. Adv. George Poonthottam is now making his submissions.
Bench: What is your prayer?
Poonthottam: My prayer is to recall the certificate
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Poonthottam refers to para 7 of the 2nd May 2023 order.
livelaw.in/high-court/all…

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Poonthottam: Either your Lorship see first...
Bench: None of us have seen the movie. Now the issue is whether contents of trailer...
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Bench asks if trailer and teaser are different. Counsels affirm that it is.
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Poonthottam: They dont say it is fiction. They say it is based on true events
Bench: They only say they are inspired by true events
Poonthottam: No no
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Bench: You are asking us to sit in appeal? What is offensive in this?
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Bench: Ours is democracy with secularism embedded in it.
Poonthottam: Originally they started saying it was 32000. Then they reduced it to 3.
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Bench: This is not the first time where a movie sets something in a bad light. Why this movie alone?
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Justice Nagaresh: You can say my God is the only God. My God is the true God. Constitution permits it. But if you say it to person belonging to another religion, is it not offensive? But Constitution still protects it.
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Bench: It says here about Allah. What is wrong in it?
Poothottam: It is not like that, It is a most vulgar form of propagation
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Court assures the counsel that it shall watch the teaser and trailer of the movie.
The Court is now watching the teaser of the film.
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The Court is now watching the trailer of the movie.
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Justice Nagaresh: Now tell me counsel, what is against Islam? There is no allegation against a religion, but only against the organization ISIS.
Poonthottam: The theme projected is Kerala is centre of all terrorist activity
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Justice Nagaresh: This has been there in Malayalam movies for many years, so why should it be a basis?
Even Christian preachers have been shown in that light.
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Justice Nagaresh: What is there to show.. why are you saying clerics are shown in bad light? Where is it shown they are clerics? Some man is coming in cap and saying you should impregnate.
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Bench: This is fiction. There are no ghosts or vampires, but there are a large number of movies showing the same.
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The Counsel shows a poster of the movie which states that the film is based on true story.
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Advocate Mohammed Shah is now making his submissions.
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Adv. Shah: You know within community we are attacking spiritual leaders, nothing will happen. But they are attacking gods of another religion.
Counsel reads a scene from the trailer which shows the same.
Bench: What is wrong in it?
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Adv. Shah: It is being said your God isn't good God, my God is the good God. Now we come to 153A.
Justice Nagaresh: If Constitution permits propagation, what is wrong in it?
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Counsel takes the Court through Section 5 of the Cinematograph Act.
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Shah: This trailer was published on 26th. I filed the complaint on 30th. I filed complaint before Central government and the authority.
Counsel now takes the Court through the Rules.

Shah: My argument is that offence has been committed.
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Shah: If I attack another religion, then there will be disharmony.
Justice Nagaresh: Where in the teaser or trailer is it being shown?
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Justice Nagaresh: One religion says my God is the only God, the true God. If that is permitted...
Shah: Can I say your Lord is not a good God? I can say my God is good, but I cannot say your God is bad
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Justice Nagaresh: But if someone says my God is the only God, wouldn't all others be bad?

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Shah: Parents will think I cannot send my children to hostel in which Muslim students also stay, they will get converted. That is the impression that they are creating here.

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Shah: Otherwise also, the entire atmosphere is poisonous, Your Lordships must stop it

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Shah: Mutual respect is where fraternity lies

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Bench: Shah, this says thousands of girls are missing...

Shah: My objection is only regarding it being said to be a true story.

Justice Nagaresh: If this statement is offending someone, it is ISIS only. There is nothing against Muslim community.
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Advocate Shah now takes the Court through the Cinematograph Rules.

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Shah: My submission is that what they're doing causes disharmony between religions.

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Shah: Here they say that only the Hindu and Christian girls are being targeted and their parents should be careful. When they say it is a true story, what will be the mindset of the parents? They say after 20 years, Kerala will be Islamic State.

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Shah: This will cause disharmony.

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Shah: That is where the problem arises. If it was fiction I would've had no problem.

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Advocate Shah takes the Court through the reliefs sought for.

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Advocate Shah has concluded his arguments.

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Advocate Ibrahim is now presenting his submissions.

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Counsel: Question is if this movie is good enough to strengthen our secular fabric and create good fraternity

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Adv. Ibrahim: Before it reaches the public and havoc is created, we request the court to view it before insurmountable damage is caused.

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Adv. Ibrahim: Therefore, I would request that time is not being wasted.

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Adv. Kaleeswaram Raj seeks to make a brief submission
Bench: No, Mr. Raj you have already made your submission. It is already 12:05
Adv. Raj: I won't be repeating anything already highlighted, only a brief submission.

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Bench says it will consider.

Advocate Raj now makes a brief submission.

Raj: This is a novel case where the Court is called upon to consider whether hate speech can be in the form of art.

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Raj refers to 4 Apex Court decisions on hate speech

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Raj: What I would point out is that I have also filed an application.

Raj says that he has filed a Rule 32 complaint.

Raj: The first thing is that this may be directed to be acted upon. This is my first submission.

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Raj: Second submission is that teaser Your Lordships were pleased to watch. R3 (CBFC) has filed a counter affidavit in this writ petition. Para 7 in that may be seen.

Raj submits that R3 has disowned the teaser.

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Raj: First of all, there must be some action on the teaser. Another submission is if this is the teaser and trailer, no one has as of now see the film. Apart from it, I would submit that the content of the film cannot be kept in mystery.

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Raj: In the process of Judicial Review, this Court can form a committee and permit the film to be watched by that committee.

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Court: Anyone appearing for the producer?

Sr Adv Ravi Kadam: We have put a disclaimer and stated that it is a work of fiction. It is 'inspired' by true events. In a film, things are always dramatized. Otherwise no one will watch it.

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Kadam: Trailer doesn't need separate certification as part of law if film is certified. Teaser, yes. Teaser is not part of film, it is only for social media. Reliefs are sought in relation to film and excerpts of it.

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Bench: No. They have challenged teaser and trailer also

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Justice Nagaresh: It only says 'inspired by true events'. There is something called freedom of speech and expression. They have artistic freedom, we have to balance that also.

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Sr Adv S Sreekumar: At the best what can be seen is some agents of ISIS have been recruiting persons. There is nothing about a particular community.

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Bench: We are not inclined to grant any interim order.

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Sr. Adv. Kadam draws attention of the Court to the decision in 'Padmaavat movie' case.

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Kadam: SC struck down prohibitions by State Governments saying all requirements are in guidelines. Moment certificate is issued by Statutory Authority, there is a presumption in favour of that certificate

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Kadam: Day after day, someone will be happy, someone will be unhappy. But there is a process. It cannot be ignored. How can they file the applications without seeing the film?

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Justice Nagaresh: But let me ask you, how can you say there were 32,000 girls?

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Kadam: That was on the basis of an information we received. That was in the teaser. That will not be continued. Please record my submission. We will remove it from social media

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Bench: I will only record the submission of the counsels that they are removing the alleged offending teaser from the platform.

Kadam: My social media handles, Your Lordship.

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Court is now dictating the Order.

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Order: All these petitions seek to suspend teaser and trailer of the movie Kerala Story and prohibit exhibition of the movie. Allegation is that movie is based on incorrect, unverified facts and contain derogatory remarks.

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Order: ... We have heard counsel on either side. We have also watched the teaser and trailer in court hall in presence of all counsels.

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Order: Going through the trailer of the movie, we find it does not contain anything offensive to any particular community as a whole. Fact remains that none of petitioners have watched movie as a whole

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Order: A competent statutory authority like CBFC has examined the movie and found it suitable for publication

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Order: From the statement of the DSG, the producers have published a disclaimer that the film is fictionalized. We are not inclined to pass an interim order restraining exhibition of film.

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Order: In view of above, and taking into consideration the statement made by the producer/company that producer does not intend to retain the offending teaser in the social media handles, no further orders are required at this stage.

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Hearing concludes.

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