Viral song row: Malayalam actor Priya Prakash Varrier, filmmaker Omar Lulu move SC, seek stay on FIR

Mumbai: Malayalam filmmaker Omar Lulu and actress Priya Prakash Varrier have reportedly moved Supreme Court seeking a stay on an FIR filed against them by the Hyderabad Police in connection with a controversy over the lyrics of the song Manikya Malaraya Poovi from the film Oru Adaar Love. 

The complaint alleges that the song hurts religious sentiments.

Priya Varrier, who is the first petitioner, Omar Lulu and others in their petition to the apex court, has sought an ex-parte stay on the FIR registered against them and have also sought appropriate orders restraining other states from registering FIRs against them.

The plea filed by Priya and Lulu says that the complaint is against freedom of speech and expression.

The petitioners have filed the present writ petition under Article 32 of the Constitution of India to enforce their Fundamental Rights as envisaged Under Article 19(1)(a), 19(1)(g) read with Article 14 & 21 of the Constitution. 

The Petitioner no. 1 herein is an 18-year-old actress of the upcoming Malayalam movie “Oru Adaar Love”. 

This is the actresses' first movie and she is a student pursuing her B. Com from Vimala College at Trichur District Kerala. The Petitioner No. 2 is the director of the movie.

The Present Petition has been filed as a result of multiple criminal proceedings which have been instituted against the Petitioners in the States of Telangana and Maharashtra. 

The complaint filed is against the song titled "Manikya Malaraya Poovi" which was released on Youtube as a song of the aforementioned film. 

In Telangana, an FIR has already been registered against the Petitioner no.2. The criminal complaints have been instituted by various fringe groups based on a distorted and incorrect interpretation of the Song in the states of Telangana, Maharashtra and similar complaints are likely from other non-Malayalam speaking states as well.

The entire controversy which has resulted in the filing of various criminal complaints and one FIR arises from the lyrics of the song “Manikya Malaraya Poovi” which is a Mappila Song, or a traditional Muslim Song from the Malabar region of Kerala. The song describes and praises the love between the Prophet Mohamed and his first wife Khadeeja. The translation of the lyrics of the song are as follows:

"She bloomed like a precious flower in the sacred land of Mecca, great Khadeeja Beevi

Was roaming in the sacred land

The lady roaming

She called for the respected lord, prophet

And send him for trade

She saw him and

Coveted him in the heart of hearts

She came back after trade

And she sought her hand

Sought her hand"

It should be important to note that the aforementioned song is originally from an old folk song from Kerala which was written in 1978 by Mr. PMA Jabbar and was first sung by Mr. Thalassery Rafeeq, in the praise of the Prophet and his wife Beevi Khadija. The claims that it hurts the religious sentiments of the Muslim Community are without any basis. What is hard to fathom is that a song which has been in existence for the past 40 years, which was written, sung and cherished by the Muslim Community in Kerala is now being treated as an insult to the Prophet and his wife. It is submitted that a song, which has existed for more than 40 years and which has been cherished by more than 1 Crore Muslim population of Kerala cannot suddenly offend the religious sentiment of the Muslim Community.

The present writ petition is based primarily on the ground that filing of criminal complaints and registration of FIRs by the police in multiple states on the basis of complaints by fringe elements who have misunderstood the lyrics of the song which they claim allegedly offended their religious sentiments and that of their community has adversely affected the petitioners right to life, liberty and freedom of expression under Articles 19(1)(a), 19(1)(g) and 21 of the Constitution. The same is also completely contrary to this Hon'ble Court's order dated 16.11.2017 in WP (C) No. 1119 of 2017 wherein this Hon'ble Court, while upholding the rights of artists to freely and legally express themselves, beautifully observed that: "Be it noted, a film or a drama or a novel or a book is a creation of art. An artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication to crucify the rights of expressive mind. The human history records that there are many authors who express their thoughts according to the choice of their words, phrases, expressions and also create characters who may look absolutely different than an ordinary man would conceive of. A thought provoking film should never mean that it has to be didactic or in any way puritanical. It can be expressive and provoking the conscious or the sub-conscious thoughts of the viewer. If there has to be any limitation, that has to be as per the prescription in law.

The Courts are to be extremely slow to pass any kind of restraint order in such a situation and should allow the respect that a creative man enjoys in writing a drama, a play, a playlet, a book on philosophy, or any kind of thought that is expressed on the celluloid or theater, etc."

In view of the above, the Petitioners herein are artists who have a right to express themselves in a lawful manner. That the legality of the content of the film and the certification on the same can only be dealt with under law by the Central Board of Film Certification (CBFC) as prescribed under the provisions of the Cinematograph Act, 1952. However, the movie is yet to be completed and an amount of Rs. 1.5 Crores have been spent on the movie. That such flimsy and baseless complaints and FIRs cause nothing but a hindrance in the freedom of speech and expression granted under Article 19(1)(a) of the Constitution and the same is an outright abuse of the process of law. Such acts only result in curbing the freedom of expression of people and have also resulted in dragging the Petitioner No.1, who is a young college student, into a criminal case for merely acting in a movie. That this Hon'ble Court in S. Khushboo Vs. Kanniammal [(2010) 5 SCC 600] quashed several complaints where no prima facie case was made out.

Since the criminal complaints are being filed in different states across the country no useful and fruitful purpose would be served in approaching the respective High Courts under Article 226 or in a petition under section 482 of the code of criminal procedure.

Details:

LIST OF DATES

DATES                               EVENTS

9.02.2018       The  promotional video of the song “Manikya Malaraya Poovi” from the upcoming movie “Oru Addar Love” was release on the video sharing website Youtube.

14.02.2018     The promotional video of the song from the petitioners movie went viral and had garnered more that 34 million views in 10 days setting a record on the social media platform.     

14.02.2018     An FIR was registered  by the Falaknama Police Station at Hyderabad, Telangana state against the Petitioner no 2 on a complaint which alleges that it has hurt his religious sentiment and that of a particular community.

14.02.2018     A criminal complaint was also filed by the Secretary of Raza Academy, Mumbai with the Commissioner of Police, Mumbai to take appropriate action against the Petitioners herein and also further take down the video and prevent it from being broadcasted.  

14.02.2018     Raza Academy. Mumbai wrote to the Chairman, CBFC stating that the song hurts the religious sentiments of the community and that the same is insulting Prophet Muhammad and his wife, Beevi Khadija and that the same should be blocked.

14.02.2018     A criminal complaint was filed against the Petitioners at Jinsi police station, in Maharashtra by a group of people under the aegis of Janjagran Samithi wherein they have also alleged that the promotional video uploaded on Youtube has hurt their religious sentiment and that of the Muslim community.

                     After numerous criminal complaints are being filed against the petitioners in various states the petitioners have no efficacious remedy other than to approach this hon’ble court.

19.02.2018     Present writ petition is being filed.       

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL) NO.       OF 2018

[UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA]

IN THE MATTER OF:

D/o. Prakash Unnikrishnan,3

G-313, Mayura Apartments,

KSHB Colony, Kanjani Chungam,

Ayyanthole, Thrissur,

Ayyanthole North,

Kerala- 680003.

Omar Abdul Vahab,

son of NP Abdul Wahab,

aged 33 years, residing at

"Nalakath puthenpurakkal" Mundur,

Thrissur, Pin - 680541,

F-1, Jewel Planet,

Vyttila P.O., Ernakulam,

1.    State of Telangana

       Through Chief Secretary,

       Telangana Secretariat,

       Khairatabad, Hyderabad

       Telangana, India                                

2.    State of Maharashtra

       Through its Chief Secretary

       Government of Maharashtra,

       Mantralaya,     Madam cama road,

       hutatma, Raj guru Chock,

       Nariman point, 

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

TO,

THE HON’BLE THE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE  PETITIONER ABOVENAMED

MOST RESPECTFULLY SHOWETH:

1.A.        The Petitioners are filing the present writ petition under Article 32 of the Constitution of India to enforce their Fundamental rights as envisaged Under Article 19(1)(a), 19(1)(g) read with Article 14 & 21, whereby criminal complaints have been filed against the petitioners in multiple states and the possibilities of multiple FIR’s being registered at the behest of fringe elements who have misunderstood the lyrics of the promotional song uploaded on Youtube which they claim allegedly offended their religious sentiments and that of their community.

1B.         The Petitioners have no other equally efficacious remedy except to approach this Hon’ble Court by way of the present writ Petition. All annexures annexed to the Writ Petition are true copies of their respective originals.

1C.         The Petitioners have not filed any other petition either before this Hon’ble Court or any other court or any High Court for seeking same or similar relief.

1D.         That since the criminal complaints have been filed in multiple places i.e. in Maharashtra and an FIR in the Falakanama Police station at Hyderabad - Telengana, the Petitioner would have to approach multiple High Courts to seek consequential reliefs. Therefore, no useful and fruitful purpose would be served in approaching the High Court under Article 226 of Constitution of India.

FACTS OF THE CASE:

2.           The Petitioners being citizens of India are entitled to invoke jurisdiction of this Hon’ble Court under Article 32 of the Constitution of India. The Petitioners Right to Freedom of Speech and Expression, Right to Freedom of Trade & Profession and also Right to Life and Liberty guaranteed under Articles 14, 19 & 21 of the Constitution of India are  being violated because of the institution of criminal cases and consequential FIR’s in multiple states.

3.           The Respondent Numbers 1 & 2 are the State Governments in whose states the criminal complaints have been filed and FIR registered.

4.           On 9.2.2018 the producers of the movie titled as “Oru Addar Love” as a promotional campaign released a promotional video of a song “Manikya Malaraya Poovi” from the movie on Youtube. The Movie is an adolescent Love Story. The song “Manikya Malaraya Poovi” has been misunderstood by people outside Kerala (Non-Malayalam speakers) as it is being wrongly translated/ interpreted and taken out of context which is leading to the  registration of multiple criminal cases against the petitioners.

5.           The song “Manikya Malaraya Poovi” is a Mappila Song, or a traditional Muslim Song from the Malabar region of Kerala, it describes the love between the Prophet Mohamed and his first wife Beevi Khadeeja. However, if the song is translated using Google translate or some other translation software’s available online it leads to a distorted translation and as a result some members of the community have ignorantly filed criminal complaints against the Petitioners. Whereby the petitioners who are residents of the state of Kerala where the song has been appreciated are facing criminal prosecution elsewhere across the country.

6.           Since its release on Youtube on 9.2.2018, the video of the song has gone Viral and has made the petitioner no. 1 an online sensation and her popularity has only been on the rise since then. The petitioner no. 1 has received appreciation from various quarters of the society.

6.           On 14.02.2018 an FIR was registered by the Falaknama Police Station at Hyderabad, Telangana state against the Petitioner No. 2 on a complaint which alleges that it has hurt his religious sentiment and that of a particular community. True copy of the FIR No. 34 of 2018 is annexed herewith as ANNEXURE “P-1” (Pages

7.           On 14.02.2018, a criminal complaint was filed by the Secretary of Raza Academy with the commissioner of police Mumbai to take appropriate action against the petitioners herein and also further take down the video and prevent it from being broadcast. True copy of the complaint dated 14.2.2018 is annexed herewith as ANNEXURE “P-2”(Pages

8.           On 14.02.2018, a criminal complaint was been filed against the petitioners at Jinsi police station, in Aurangabad, Maharashtra by a group of people under the aegis of Janjagran Samithi wherein they have also alleged that the promotional video uploaded on Youtube has hurt their religious sentiment of the Muslim community. A True Copy of the news report of Indian Express dated 16.2.2018 is attached herewith and marked as Annexure P-3 (Pages

9.           The Hon’ble Chief Minister of Kerala Mr. Pinaray Vijayan has expressed his support and appreciation for the movie as well as the Petitioners and criticized the action of the Muslim Fundamentalists who have filed a complaint against the song. A True translated copy of post of the Hon’ble Chief minister of Kerala dated 15.2.2018 is annexed herewith as ANNEXURE “P-4”(Pages

10.         Various media channels including print, television and online have covered the story. A true copy of the News Extract published by NDTV dated 16.02.2018 is annexed as ANNEXURE “P-5”(Pages

A true copy of the News Extract published by India Today dated 14.02.2018 is annexed as ANNEXURE “P-6”(Pages

11.  That registration of FIR’s by the state and initiation of criminal proceedings against the Petitioners for no fault of theirs has not only violated the fundamental rights of the petitioners as guaranteed by the Constitution but the same is an abuse of process of law by certain sections of the society and the petitioners will be put through irreparable loss and injury if appropriate orders protecting their life and liberty are not passed by this Hon’ble Court. This Hon’ble Court in a similar matter i.e. Writ Petition(s)(Civil) No(s).36/2018 where the controversies were similar has clearly stated that “It should always be remembered that if intellectual prowess and natural or cultivated power of creation is interfered without the permissible facet of law, the concept of creativity paves the path of extinction; and when creativity dies, values of civilization corrode.”. The registration of the criminal complaints and the registration of FIR by the state is nothing but a means to an end to stifle creativity. A true copy of the order dated 18.01.2018 of this Hon’ble court in Writ Petition(s)(Civil) No(s).36/2018is annexed as ANNEXURE “P-7”(Pages

11.  That this Hon'ble Court has also held that an artist has the right to express himself in a legal manner and observed that "An artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication to crucify the rights of expressive mind.". A true copy of the order dated 16.11.2017 of this Hon’ble court in Writ Petition(s)(Civil) No(s).1119/2017 is annexed as ANNEXURE “P-8”(Pages

12.  That this Hon'ble Court in S. Khushboo Vs. Kanniammal [(2010) 5 SCC 600] quashed several complaints where no prima facie case was made out.

11.  Thus being aggrieved, the Petitioners with leave of this Hon’ble Court is filing the present writ petition under Article 32 of the Constitution of India on inter-alia the following grounds:-

That there is a threat to the life of a young girl, the Petitioner No.1 herein and her family as fatwas have been alleged to have been issued against her and her family. That the same is violative of her rights under Article 21 of the Constitution.
That the registering of FIRs and complaints against the Petitioners is violative of their rights under Article 19(1)(a) and 19(1)(g) which prescribe that a citizen shall have the freedom of expression and profession.
That the FIR, complaints should be quashed as no ingredients have been made out against the Petitioners and there have not been any malafides made out against them.
That the FIR ought to be quashed as the lyrics of the song have penned by someone else in 1978 and that the Petitioners cannot be held liable for the same as they are not the authors of the lyrics.
That the Petitioners cannot be prosecuted now for picking up a song which was popular for 40 years.
That the song “Manikya Malaraya Poovi” is a Mappila Song, or a traditional Muslim Song from the Malabar region of Kerala, which praises the love between the Prophet Mohamed and his first wife Khadeeja and is a part of the Muslim tradition in Kerala and does not offend any religious sentiment of any community or person.
Because multiple criminal complaints have been filed against the petitioners in various states for no fault of theirs. Just because the song became Viral, viewers started to use Google and/or online translations tools to translate the lyrics which has led to distortion of the lyrics and meaning of the song in other states where Malayalam is not the language.      
Because the complaints and the consequent registration of the FIR by the non Malayalam speaking states have been ignorantly done on the basis of wrong, translation and misunderstanding of the translated lyrics of the Malayalam Song.
Because the Petitioners are residents of Kerala and will be constrained to defend these criminal cases instituted by the various non Malayalam speaking states which will cause irreparable loss and injury and violate their fundamental right to life and liberty.
Because the Muslim community in Kerala from where the song originates has been appreciating this song for over 40 years and it does not offend or hurt the religious sentiments of any community.
Because no criminal complaint or FIR has been filed by any section of society in Kerala against the Petitioners, which only goes to show that the criminal complaints against the petitioners are not sustainable in the eyes of law. 
Because the registration of the FIR by the states against the Petitioners is illegal, unwarranted, arbitrary, excessive and unjustified.
That the movie is yet to be completed and an amount of Rs.1.5 Crores have already been spent on the movie.
That this Hon'ble Court in S. Khushboo Vs. Kanniammal [(2010) 5 SCC 600] quashed several complaints where no prima facie case was made out and the facts are similar to the present case.

12.  The Petitioner has not filed any similar Writ Petition either before this Hon’ble Court or any High Court praying for the same reliefs as are claimed in the present Writ Petition.

PRAYER

       It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:

a.    Issue an appropriate writ/writs including a writ in the nature of mandamus quashing the FIR no 34 of 2018 dated 14.2.2018 filed with the Falaknama Police Station, Hyderabad – Telengana.

b.    issue an appropriate writ/writs prohibiting the states not to initiate or register any criminal proceedings, complaint, FIR against the Petitioners on complaints that are received stating that the lyrics of the song “Manikya Malaraya Poovi” from the movie “Oru Addar Love” is offensive or has violated the religious sentiment of a particular community; and

c.    pass such other order or orders as are deemed fit and necessary in the interest of justice.

AND FOR THIS ACT OF KINDNESS THE PETITIONERS AS IN DUTY BOUND SHALL EVER PRAY.

Drawn by                            FILED BY:

Haris Beeran                 (Pallavi Pratap)       

Advocate                  Advocate for the petitioner

Place: New Delhi

Drawn on:19.02.2018

Filed on: 19.2.2018

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO.           OF 2018

[UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA]

IN THE MATTER OF:

Priya Prakash Varrier & Ors.... Petitioners

VERSUS

State of Telangana & Ors.            ...Respondents

APPLICATION FOR EX-PARTE STAY OF INVESTIGATION IN FIR NO. 34 OF 2018 IN FALAKNAMA POLICE STATION, HYDERABAD – TELENGANA AND ALSO APPROPRIATE ORDERS RESTRAINING OTHER STATES FROM REGISTERING FIR’S AGAINST THE PETITIONERS.

To,

The Hon’ble the Chief Justice of India

and his Companion Justices

of the Hon’ble Supreme Court of India

Humble petition of the applicants

 above named

MOST RESPECTFULLY SHOWETH

The Petitioners are filing the present writ petition under Article 32 of the Constitution of India to enforce their Fundamental rights as envisaged Under Article 19(1)(a), 19(1)(g) read with Article 14 & 21, whereby criminal complaints have been filed against the petitioners in multiple states and the possibilities of multiple FIR’s being registered at the behest of fringe elements who have misunderstood the lyrics of the promotional song uploaded on Youtube which they claim allegedly offended their religious sentiments and that of their community.
“Manikya Malaraya Poovi” is appreciated by all members of the society in Kerala and also appreciated by the Muslim community in Kerala for over 40 years and thus registration of FIR and criminal proceedings against the petitioners based on the wrong translation/interpretation of the lyrics of the song will cause irreparable loss and injury and also violate the fundamental rights of the petitioners. 
“Manikya Malaraya Poovi” from the movie “Oru Addar love”

       In the circumstances it is most respectfully prayed that this Hon’ble Court may be pleased to:

a.    Pass an Grant ad-interim ex-parte order staying the investigation of FIR no. 34 of 2018 before the police station Falaknama Police station – Telangana State.

b.    Pass and Grant ad-interim ex-parte order staying all criminal proceedings arising from complaints against the petitioners arising from the song “Manikya Malaraya Poovi” from the movie “Oru Addar love”

c.    Pass such other and further relief, as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

                                          FILED BY:

                                     ( Pallavi Pratap)       

                      Advocate for the petitioner

New Delhi

Dated:19.02.2018

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (Crl.) No.        of 2018

IN THE MATER OF:-

Priya Prakash Varrier & Ors.... Petitioners

VERSUS

State of Telengana & Anr.      ... Respondents

AFFIDAVIT

I, Omar Abdul Vahab, son of NP Abdul Wahab, aged 33 years, residing at "Nalakath puthenpurakkal"  Mundur, Thrissur, Pin - 680541, Kerala, presently at New Delhi, do hereby solemnly affirm and state as follows:

1.    That I am the Petitioner No.2 in the above writ petition and I am well conversant with the facts and circumstances of the case and as such competent to swear upon this affidavit. I am swearing on behalf of Petitioner No. 1 and 3 as well.

2.    I state that the contents of List of Dates at Pages       to      and Writ Petition as contained in Paras         to    at Writ Petition at pages      to       and applications are true to my knowledge and information derived from the records of the case and those of submissions of law made in question of law, grounds, prayer, applications and certificate are true as per the legal advice received and believed by me.

3.    I say that the annexure P-1  at pages   to annexed along with the Writ Petition are true copies of its respective originals.

DEPONENT

Verification

Verified at New Delhi on this the __th day of February 2018 that the contents of paragraphs 1 to 3 of the above affidavit are true and correct to my knowledge and belief, that no part of it is false and nothing material has been concealed there from

 D E P O N E N T