The story so far: The Kerala Story, a film purportedly based on the instances of a few women joining the Islamic State, has been embroiled in a controversy ever since the teaser of the film was released in November 2022. The teaser led to widespread outrage because of its claim that 32,000 girls went missing in Kerala after being recruited by the radical Islamist group.
After a slew of petitions were filed before various courts in the country seeking a ban on the film, the filmmakers agreed to withdraw the teaser and carry a disclaimer that the film’s content is fictional.
The film was released in cinemas last week after the Kerala High Court declined to stay its screening, opining that it did not contain anything offensive to any particular community as a whole and that none of the petitioners had watched the movie. However, a Supreme Court bench led by Chief Justice of India DY Chandrachud has agreed to hear a petition challenging the Kerala High Court order on Monday.
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Petitions filed against the movie contend that the movie amounts to the “worst instance of hate speech” and is “audio-visual propaganda”. Echoing similar sentiments, Kerala Chief Minister Pinarayi Vijayan stated that the movie was an attempt to spread hate propaganda and otherisation of Muslims.
This brings to the fore a crucial question -- can a work of fiction or any art form constitute hate speech?
What are the arguments for banning the film?
Islamic clerics organisation Jamiat Ulama-I-Hind moved the Supreme Court earlier last week seeking to ban the release of the movie on the grounds that it is likely to cause hatred and enmity between different sections of society in India. Jamiat contended that the movie and trailer are “in the teeth of the constitutional values of equality and fraternity” and that the false assertion that around 32000 girls have gone missing after joining ISIS is nothing but “malicious propaganda”.
However, a division bench of the Supreme Court refused to grant a stay and suggested that the Kerala High Court be approached for relief instead. Consequently, a host of petitions were filed before the High Court arguing that the film blatantly promotes hateful propaganda.
One of the pleas moved by an NGO named Rajiv Gandhi Study Circle submitted that the movie has the “proclivity and potentiality to disturb public order, decency and morality, particularly women and the Muslim community”. It argued that the movie and the trailer constitute hate speech capable of destroying the secular fabric of the state, targetting the Muslim community.
What did the Kerala High Court say?
During the hearing, a bench comprising Justice N Nagaresh and Justice Mohammed Nias CP remarked that the film was merely a form of art and cannot be conflated with hate speech. Refuting this, advocate Kaleeswaram Raj, appearing for one of the petitioners said, “If this Court feels this is not hate speech, nothing else would be”.
Also Read | Another petition moved against The Kerala Story in High Court
The Court refused to stay the film’s release, saying that there was no allegation against a particular religion as a whole and that certain claims have been made only against ISIS. The bench highlighted that artistic freedom must be protected and thus there was a need to balance competing interests. It also said that there are umpteen movies in which Hindu sanyasis were depicted as smugglers or rapists, but it has not led to any adverse consequences.
However, it allowed the petitioners to prosecute their complaint before the Central Board of Film Certification (CBFC) seeking re-examination of the film.
What are the applicable laws?
There is no specific legal definition of ‘hate speech’ in India. However, provisions criminalise speeches, writings, actions, signs and representations that further violence and spread disharmony between communities and groups.
While Article 19(1)(a) guarantees the right to freedom of speech and expression, reasonable restrictions can be imposed on the right to bar speeches that expose a person or a group or section of society to hate, violence, ridicule or indignity.
The provisions of the Indian Penal Code (IPC) generally invoked against film-makers are: Section 153A [promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony], Section 153B [imputations, assertions prejudicial to national-integration] and Section 295A [deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs] among others.
The Cinematograph Act, 1952 also empowers the Board of Film Certification to prohibit and regulate the screening of a film if it is likely to incite the commission of any offence, is against public order, decency or morality, or involves defamation or contempt of court.
Similarly, the Cable Television Network Regulation Act, 1995 requires cable news channels to adhere to a list of restrictions on content, prescribed under the programme code or advertisement code. These codes have been defined under the Cable Television Network Rules, 1994.
Recognizing the insufficiency of existing laws to deal with less overt forms of hate speech, the Law Commission proposed the addition of new provisions to the IPC —sections 153C [prohibiting incitement to hatred] and 505A [prohibiting causing fear, alarm or provocation of violence].
What have courts decided in the past?
In 2018, a few State governments banned the release of the Hindi film Padmaavat, saying that it could disrupt law and order. Stating that cinemas are an inseparable part of the right to free speech and expression, the Supreme Court stayed the ban, noting that since the CBFC had already authorised the release of the film there was a a prima facie presumption that it took all the prescribed guidelines into effect, including that on public order.
Similarly, during the release of the controversial film MSG-2 The Messenger, the Delhi High Court did not entertain a plea seeking a ban. The plea said that the film depicted Adivasis as anti-national; however, the Court asserted that the film’s trailer depicts “a fantasy to the viewers and has to be understood in that light only”.
Another precedent is the case filed against the movie Ramleela alleging that it gave the wrong impression that it was based on Lord Ram’s life while in reality it promoted vulgarity and hurt the religious sentiments of people. Refusing to ban its release, the Delhi High Court said that although the Constitution permits prior restraint, the competing interests of the artists must be favoured.
In an earlier case, the State government banned the Tamil movie, Ore Oru Gramathile. When this was challenged in the Madras High Court, the ‘U’ certificate granted to the movie was revoked on the grounds that the release of the movie would lead to demonstrations. Reversing the High Court’s judgment, the Supreme Court underscored that a film’s producer has the right to project his own message which others might not approve of and that the state cannot “prevent open discussion and open expression, however, hateful to its policies”.
Even in Kerala, there are precedents— last year, the Kerala High Court dismissed a plea that sought the removal of the Malayalam film Churuli from a streaming platform for too much foul language. Dismissing the plea, the Court said that the filmmaker used language, which, according to his artistic view, was used by the people in his film.
An FIR was filed against the Commercial Head of Amazon Prime Video, Aparna Purohit, for hurting religious sentiments and promoting enmity between different groups with the Amazon Prime series Tandav . The Allahabad High Court rejected a plea for anticipatory bail and called it an attempt to make revered majority religious figures a source for earning money. However, the Supreme Court later granted interim protection and set aside the High Court’s order.
What do legal experts have to say?
Elucidating upon the remedies available in criminal law, Advocate Tanvir Ahmed Mir said, “Anybody who is aggrieved can lodge an FIR saying that the content of a particular movie is outrightly a cognizable offence under sections 153A and 153B of the IPC. The onus and burden are on the person who asserts that a particular film depiction is geared towards denigrating a particular community and as such should not be in the public domain.”
On whether filmmakers enjoy immunity, Mir added, “A person who is being victimised or is being portrayed in an undignified manner also has his fundamental rights under Part III of the Constitution as well as other civil rights violated. Nobody has any overwhelming immunity in depicting any community or any person in a derogatory manner”.
According to Advocate Bharat Chugh, since there is no specific hate speech law, one has to fall back on IPC provisions for which the standard for prosecution is very high. “Courts have traditionally given a long leash to producers because of the right to creative freedom”, he said.
He explained further that Censor Board certification can be challenged to see if any regulations have been violated. “Every authority has to act in accordance with the law. They have to apply their mind. They have to look at the movie holistically and see if it satisfies the regulations or not. If they have not done that then of course it is a case for challenge.” he said.
“Prima facie the content of the movie appears to be disturbing to say the least”, Chugh added.
