The Kerala Story and the Supreme Court: Why the Court Has Kept the Question of Hate-Promoting Films Open
Introduction
The Supreme Court’s latest order concerning The Kerala Story is significant not because the Court has finally decided whether the film amounts to hate speech, but because it has deliberately left that larger legal question open.
On August 21, 2026, a bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi, and Justice V. Mohana disposed of three proceedings connected with The Kerala Story. At the same time, when the petitioners urged the Court to frame general guidelines for films alleged to promote hate or communal disharmony, the Bench permitted them to approach the Court with a fresh and comprehensive petition.
The principal proceeding is Qurban Ali v. Central Board of Film Certification & Anr., SLP(C) No. 10166/2023, connected with W\.P.(C) No. 552/2023 filed by Sunshine Pictures Pvt. Ltd. and SLP(C) No. 10391/2023 filed by B.R. Aravindakshan. The Supreme Court’s cause-list records confirm these connected proceedings.
For lawyers, filmmakers, producers, civil-society groups, and constitutional-law observers, the real importance of today’s development lies in what remains undecided:
When does a film cross the constitutional line between protected artistic expression and speech capable of promoting hatred or disturbing communal harmony?
That question has not been answered today.
And, in my view, that is precisely why this order may prove more important than a simple disposal of three old petitions.
What Did the Supreme Court Decide Today?
The Court did not issue a blanket ruling declaring The Kerala Story to be hate speech.
Nor did it formulate new guidelines governing films that allegedly promote communal hatred.
Instead, the Court disposed of the three pending proceedings arising from the 2023 controversy, while leaving the underlying question of law open. The petitioners were given liberty to initiate appropriate proceedings, including a comprehensive writ petition seeking general guidelines concerning films alleged to promote hate speech.
This distinction is extremely important.
A disposal of a petition does not necessarily mean that every legal proposition raised in that petition has been judicially rejected. In the present case, the Court expressly kept the legal issue open.
Justice Joymalya Bagchi indicated that the Court could examine the question in an appropriate future case involving another controversial film. The Bench therefore avoided converting litigation concerning one particular movie into a sweeping judicial framework applicable to the entire film industry.
That is a cautious constitutional approach.
The Case: Qurban Ali v. Central Board of Film Certification
The principal case is
Qurban Ali v. Central Board of Film Certification & Anr.
SLP(C) No. 10166/2023
The proceedings arose from challenges connected with the certification and exhibition of The Kerala Story. The connected matters included proceedings involving Sunshine Pictures Pvt. Ltd. and B.R. Aravindakshan. The Supreme Court’s own cause-list records identify the connected matters.
The controversy dates back to 2023, when the film became the center of an intense national debate concerning alleged forced religious conversions, recruitment into ISIS, communal representation, and the limits of cinematic expression.
The litigation consequently raised questions extending well beyond one film.
It touched upon:
- Article 19(1)(a) and freedom of speech;
- reasonable restrictions under Article 19(2);
- communal harmony;
- public order;
- hate speech;
- film certification;
- the powers and responsibilities of the CBFC;
- judicial review of certification decisions;
- the distinction between fact, fiction, and dramatization;
- and the constitutional limits of government interference with artistic expression.
Why Did the Supreme Court Not Decide the Larger Question?
The answer is rooted in judicial restraint.
By the time the matter came before the Bench today, the film had already been released. One of the proceedings concerning the producers was withdrawn, while the petitioners in the other matters argued that important legal questions nevertheless survived.
The petitioners argued, among other things, that the problem was not confined to The Kerala Story. Their concern was the absence of clear judicially enforceable standards for films that allegedly promote hatred.
That submission potentially transforms an individual movie dispute into a constitutional-policy question affecting the entire Indian film industry.
The Bench therefore adopted a measured course:
Rather than deciding a broad constitutional question in the context of a film whose release had already taken place, the Court left the issue open and permitted a fresh comprehensive challenge.
This approach prevents the Court from unnecessarily deciding constitutional questions without a fully developed factual and legal record.
The Central Constitutional Conflict: Article 19(1)(a) vs. Article 19(2)
The most important legal framework is Article 19 of the Constitution.
Article 19(1)(a) guarantees citizens the fundamental right to freedom of speech and expression.
Cinema falls within the broad constitutional protection of expression.
But that freedom is not absolute.
Article 19(2) permits reasonable restrictions on speech in specified interests, including:
- sovereignty and integrity of India;
- security of the State;
- friendly relations with foreign states;
- public order;
- decency or morality;
- contempt of court;
- defamation;
- and incitement to an offense.
The constitutional difficulty is obvious.
A film may be controversial, provocative, offensive, or politically unpopular without necessarily becoming unlawful.
The state cannot suppress expression merely because a section of society dislikes its message.
At the same time, the Constitution does not provide an unlimited license to deliberately incite violence or promote hatred against communities.
The legal challenge is therefore to determine where legitimate artistic expression ends and constitutionally impermissible harmful speech begins.
That boundary is neither simple nor mechanical.
A Film Is Not Automatically Hate Speech Because It Is Controversial
This distinction deserves particular emphasis.
In constitutional jurisprudence, controversy by itself is not the legal test.
A film can:
- criticize a religion;
- portray religious extremism;
- depict terrorism;
- present a politically unpopular narrative;
- dramatize historical events;
- portray disturbing violence;
- or provoke intense public debate,
without automatically becoming unlawful.
The question must be considerably more precise.
Courts may have to examine matters such as
- What exactly does the film communicate?
- Is the representation factual, fictionalized, or dramatized?
- Does the film identify an entire community with criminal conduct?
- Is hatred being encouraged against a protected group?
- Is there an identifiable risk to public order?
- Is the impugned material integral to the film’s artistic expression?
- Can a less restrictive measure address the concern?
- Was the film properly examined under the statutory certification framework?
- Does the alleged harm arise from the film itself or from surrounding political mobilization?
- What is the evidentiary basis for alleging that the film is likely to cause unlawful harm?
These questions are likely to become central if a fresh petition seeking general guidelines is filed.
The CBFC and the Question of Hate Speech in Cinema
The Central Board of Film Certification occupies a critical position in this legal architecture.
A filmmaker does not enjoy an entirely unregulated right to exhibit a film publicly. Cinematographic works are governed by the statutory certification framework.
But certification also cannot become a mechanism through which legitimate expression is suppressed merely because the subject is politically sensitive.
This creates a delicate institutional balance.
The CBFC and hate speech debate therefore involve two competing dangers.
Danger One: Excessive Censorship
If certification authorities become excessively cautious, films dealing with religion, politics, history, terrorism, or social conflict could be subjected to prior restraint merely because they might provoke criticism.
That would have a chilling effect on creative expression.
Danger Two: Regulatory Failure
The opposite danger is equally serious.
If a film crosses into deliberate communal vilification, incitement, or material capable of creating serious public disorder, simply granting a certificate cannot automatically immunize the film from constitutional scrutiny.
The question is therefore not whether the CBFC should regulate films.
It is:
How should that regulatory power be exercised consistently with Article 19?
What Happened in 2023?
The controversy surrounding The Kerala Story began well before today’s order.
The film was directed by Sudipto Sen and produced by Vipul Amrutlal Shah. It became controversial because of claims concerning women from Kerala allegedly being converted and recruited into ISIS. The film’s promotional claims, particularly the figure of 32,000, became one of the major flashpoints of the controversy.
The controversy eventually reached multiple constitutional courts.
The West Bengal government had imposed a ban on the film. The producers approached the Supreme Court, which stayed the state government’s ban in May 2023.
The litigation therefore became an important confrontation between:
State power to protect public order
and
the filmmaker’s constitutional right to expression.
That conflict remains relevant even though today’s proceedings have been disposed of.
The Importance of the West Bengal Ban
The West Bengal episode is particularly significant from a constitutional perspective.
A state government cannot ordinarily prohibit expression simply because it anticipates political disagreement or criticism.
Any restriction must fall within the constitutional framework.
The Supreme Court’s intervention in 2023 demonstrated that executive authorities cannot treat public controversy as an automatic justification for banning a film.
This principle has implications far beyond The Kerala Story.
If the existence of protests becomes sufficient justification for banning a movie, then the legal position could perversely reward those willing to create disruption.
That would create an unhealthy constitutional incentive:
The more aggressively a group protests against expression, the easier it becomes to suppress that expression.
Constitutional democracy cannot operate on that principle.
But Freedom of Speech Is Not an Unlimited Defense
There is an equally important counterpoint.
Freedom of speech is not an absolute defense against every form of expression.
The Constitution itself recognises legitimate restrictions.
If a film actually contains material that satisfies the legal requirements for restriction—particularly where there is a demonstrable connection with public order or incitement—the State is not constitutionally powerless.
But the restriction must satisfy constitutional standards.
There must be more than
- political disagreement;
- ideological discomfort;
- public criticism;
- social-media outrage;
- or the mere possibility that somebody may be offended.
The restriction must have a lawful constitutional foundation.
Why Today’s “Fresh Petition” Permission Matters
This is perhaps the most important aspect of today’s development.
The petitioners wanted the Supreme Court to establish guidelines for films that promote hate speech.
The Bench effectively said:
Bring a comprehensive writ petition.
That opens the door for a future constitutional proceeding with a much wider scope than the original Kerala Story litigation.
A properly framed petition could potentially require the court to examine:
1. What Constitutes Hate-Promoting Cinematic Expression?
The Court may have to distinguish hate speech from offensive, unpopular, or controversial speech.
2. What Responsibility Does the CBFC Have?
The Court could examine whether existing certification guidelines sufficiently address communal disharmony.
3. What Is the Role of Disclaimers?
A disclaimer may clarify that a story is fictionalized or dramatized, but whether a disclaimer can cure otherwise unlawful content is a different question.
4. Can Courts Review a Film After Certification?
This is an important procedural issue.
Certification does not necessarily place a film beyond judicial review, but courts must also avoid replacing statutory authorities with their own subjective artistic assessment.
5. What Evidence Is Required to Restrict Exhibition?
A future case could establish evidentiary standards concerning alleged threats to public order.
The “Chilling Effect” Problem
One of the greatest dangers in this area is the chilling effect.
Imagine a filmmaker considering a movie about:
- religious extremism;
- communal violence;
- terrorism;
- caste conflict;
- political radicalization;
- historical atrocities;
- or controversial religious practices.
If every controversial screenplay carries the possibility of litigation, bans, and criminal proceedings, filmmakers may simply avoid difficult subjects.
That would impoverish public discourse.
A democracy should not become a place where only safe stories are told.
At the same time, artistic freedom cannot be used as a cloak for deliberately dehumanizing an entire community.
The constitutional answer must therefore be based on principled standards rather than political convenience.
The Kerala Story Litigation and the “True Story” Problem
Another difficult issue concerns the distinction between fact and dramatization.
Films frequently describe themselves as
- based on true events;
- inspired by true events;
- based on real incidents;
- fictionalized;
- or dramatized.
The legal consequences may differ depending on what representation is actually made.
If a filmmaker presents an invented statistic as established fact, the issue may be materially different from a clearly fictional narrative.
That is why courts may have to examine not merely the film’s theme but also:
the nature of the claim, the factual foundation, the presentation and the foreseeable impact.
This is particularly important when a movie deals with religion or identifiable communities.
Can a Disclaimer Solve the Problem?
Not necessarily.
A disclaimer can perform an important function by informing viewers that the work contains fictionalisation or dramatization.
But a disclaimer should not automatically become a legal shield.
If content otherwise satisfies the constitutional or statutory threshold for restriction, simply adding a disclaimer cannot necessarily cure the illegality.
Conversely, the existence of a controversial factual claim should not automatically make a film unlawful if the overall work remains within constitutionally protected expression.
The legal assessment has to be substantive.
What Does Today’s Order Mean for Filmmakers?
For filmmakers, the immediate message is neither “anything can be shown” nor “controversial films will be banned.”
The message is more nuanced.
First
Certification remains important.
Filmmakers must carefully comply with the statutory certification framework.
Second
Certification does not necessarily end every constitutional dispute.
Questions involving fundamental rights and public order may still reach constitutional courts.
Third
Controversy alone should not become censorship.
A film should not be prohibited merely because political groups oppose it.
Fourth
Films involving religion and communal issues require heightened legal awareness.
Creators should be particularly careful with factual claims, community-wide generalizations, and promotional material.
What Does It Mean for Governments?
Today’s development should also be read as a warning to governments.
Executive authorities cannot casually use public-order arguments as a substitute for constitutional reasoning.
If a government seeks to restrict a film, it should be able to demonstrate:
- the statutory source of its power;
- the factual basis for the restriction;
- the relevant constitutional ground;
- and the proportionality of the restriction.
The state must protect public order without allowing the heckler’s veto to control artistic expression.
What Does It Mean for the CBFC?
The CBFC may face increased constitutional scrutiny if the proposed fresh petition is filed.
The larger issue may become whether existing certification standards adequately address:
- communal hatred;
- religious stereotyping;
- misinformation;
- incitement;
- historical distortion;
- and potentially harmful depictions of identifiable communities.
But the answer cannot simply be to impose broad censorship.
Any future guidelines must remain constitutionally compatible with Article 19(1)(a).
The Bigger Constitutional Question
In my considered view, the real issue emerging from the Supreme Court The Kerala Story proceedings are not about whether one particular movie is “good” or “bad.”
Courts are not film critics.
The constitutional question is
How should India protect freedom of cinematic expression while preventing genuine hate speech and incitement from being disguised as artistic freedom?
That is a much harder question.
And it is precisely the kind of question for which constitutional courts should develop carefully reasoned principles rather than broad political slogans.
Why the Supreme Court’s Restraint May Ultimately Be Important
There is sometimes a temptation to regard disposal of a high-profile case as an anti-climax.
I would take a different view.
The Court has avoided creating a sweeping rule from a controversy that arose around one particular film.
Instead, it has kept the legal issue open and invited a properly framed, comprehensive challenge.
That gives future proceedings an opportunity to address the question systematically.
The Court can hear arguments from:
- filmmakers;
- producers;
- actors;
- certification authorities;
- governments;
- constitutional-law experts;
- civil-society organizations; and
- affected communities.
A carefully developed constitutional record could then produce guidelines capable of applying across the film industry.
That would be far more valuable than a ruling limited to one movie.
A Possible Future Test for “Hate-Promoting Films”
Although the Supreme Court has not formulated such a test today, a future constitutional framework may need to examine several cumulative factors.
A. Content
What exactly does the film communicate?
B. Target
Is the criticism directed at individuals, organizations, extremist groups, or an entire religious/community identity?
C. Context
What social and political circumstances surround the film’s release?
D. Intent
Is there evidence of deliberate incitement or merely controversial artistic expression?
E. Impact
Is there credible evidence of a real and proximate threat to public order?
F. Medium and Reach
Is the disputed content confined to the film, or is it amplified through promotional campaigns and other media?
G. Proportionality
Would a disclaimer, edit, age restriction, or other less restrictive measure address the legitimate concern?
H. Judicial Review
Has the statutory certification process been properly followed?
Such a framework could potentially protect both sides of the constitutional equation.
The Kerala Story and Freedom of Speech: The Principle That Should Guide the Debate
The strongest constitutional position is not to automatically defend or condemn the film.
It is to defend the rule of law.
If the film contains protected expression, that expression deserves protection even if it is unpopular.
If some content crosses the statutory and constitutional threshold for restriction, the law must be capable of addressing it.
But neither conclusion should depend upon:
- the political popularity of the film;
- the ideology of its makers;
- the religion portrayed;
- the political party supporting it; or
- the political party opposing it.
Constitutional rights cannot change according to the identity of the speaker.
My Legal Assessment
Having followed constitutional litigation involving freedom of expression for many years, I believe today’s development should be understood as an opening rather than a conclusion.
The Supreme Court has closed the immediate 2023 proceedings because the circumstances surrounding those petitions have substantially changed. But the Court has consciously avoided shutting the door on the larger constitutional question.
The words “file a comprehensive writ petition seeking general guidelines” are therefore more significant than the bare disposal of the old cases.
If such a petition is properly framed, the Supreme Court may eventually have to confront one of the most difficult questions for modern constitutional democracies:
How do we prevent hate without censoring disagreement?
That question has become even more important in an era in which cinema no longer ends at the theater door. Films now move rapidly to OTT platforms, social media, short-video platforms, and political campaigns.
The reach of cinematic expression has multiplied.
So too has the potential reach of its consequences.
Conclusion
The latest Supreme Court development concerning the Kerala Story should not be reported merely as “Supreme Court closes Kerala Story cases.”
That headline misses the real legal story.
The Court has disposed of the three pending proceedings, but the constitutional question concerning guidelines for films alleged to promote hate remains open. The petitioners have been given liberty to bring a fresh comprehensive proceeding.
The future case could have implications extending far beyond The Kerala Story.
It may ultimately determine how Indian law balances:
freedom of speech + artistic expression + film certification + communal harmony + public order + protection against hate speech.
That is why this matter deserves close constitutional scrutiny.
The final lesson is simple:
A democracy must have the courage to tolerate uncomfortable cinema, but it must also have the legal discipline to confront genuine incitement to hatred. The constitutional challenge is to know the difference.
Case Citation
Qurban Ali v. Central Board of Film Certification & Anr., SLP(C) No. 10166/2023, along with connected W.P.(C) No. 552/2023 and SLP(C) No. 10391/2023. The connected matters are identified in the Supreme Court’s cause-list records.
Date of latest development: 21 August 2026
Bench: Chief Justice of India Surya Kant, Justice Joymalya Bagchi, and Justice V. Mohana.
Frequently Asked Questions
1. What did the Supreme Court decide in the Kerala Story case?
The Supreme Court disposed of three proceedings concerning the Kerala Story but left the underlying legal question open. The Court permitted the petitioners to approach it through a fresh comprehensive petition seeking guidelines concerning films alleged to promote hate speech.
2. Did the Supreme Court declare The Kerala Story to be hate speech?
No. The latest order does not declare the film to be hate speech. The broader legal question has been expressly left open.
3. Can a fresh petition seek Supreme Court guidelines for films promoting hate?
Yes. The Bench permitted the petitioners to file a comprehensive writ petition seeking general guidelines concerning films alleged to promote hate speech.
4. What is the main constitutional issue?
The principal issue is the balance between Article 19(1)(a), which protects freedom of speech and expression, and Article 19(2), which permits reasonable restrictions on specified constitutional grounds, including public order and incitement-related concerns.
5. Does CBFC certification prevent courts from examining a film?
Not necessarily. Certification is an important statutory process, but constitutional courts can examine questions involving fundamental rights and legality. The precise scope of such judicial review remains an important issue for future litigation.
Key Takeaways
- The Supreme Court: The Kerala Story proceedings have been disposed of.
- Three connected proceedings from the 2023 controversy were before the Court.
- The Supreme Court has not ruled that The Kerala Story is hate speech.
- The larger legal question has been left open.
- Petitioners have been permitted to file a fresh comprehensive petition seeking guidelines for films alleged to promote hate speech.
- The case raises major questions concerning freedom of speech and cinema.
- The role of the CBFC and hate speech regulation may receive further judicial scrutiny.
- The ultimate constitutional challenge is balancing artistic freedom with communal harmony and public order.
- The future proceedings could affect the legal framework governing controversial films across India.
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In constitutional law, the hardest cases are rarely about choosing between two absolute positions. They are about protecting one constitutional value without destroying another.
The Kerala Story litigation presents precisely that challenge. The answer should not be dictated by whether we personally like or dislike a particular film. The answer must come from constitutional principle, evidence, proportionality, and equal application of law.
The freedom to create controversial cinema and the responsibility not to incite hatred must coexist within the constitutional framework.
This article is intended for general legal information and analysis and should not be treated as legal advice in any particular case.
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