A recap of the facts first. Just days before the general elections, a hagiographical film on Prime Minister Narendra Modi is scheduled for release and publicised extensively. Its title is unimaginative (PM Narendra Modi) and tagline reminiscent of desi superhero comics (“Deshbhakti hi is chowkidar ki shakti hai”). Nevertheless, its lead actor is well-known (though not quite a megastar), while its director’s repertoire includes the National Award-winning biopic Mary Kom.
A young lawyer-cum-Congress party worker petitions the Supreme Court after encountering the film’s trailer, seeking a stay on its release. He contends that the film “will disturb the level playing field” before the elections. “So much of court time is wasted on non-issues such as these,” the Chief Justice reportedly remarks.
The Supreme Court ultimately dismisses the petition, feeling that it “may encroach upon the functions of the competent authority” (the Central Board of Film Certification). The Court then makes what proves to be an unpropitious observation: “[W]hether the film will tilt the electoral balance in favour of any political party, is a question that can and should be addressed by the Election Commission of India. … what conditions should govern such release…is a matter that the Election Commission of India has to decide.” Seizing upon these remarks, our young crusader approaches the Election Commission (EC) and alleges a violation of the model code of conduct (MCC).
Election commission order
The EC, as widely reported, ruled in favour of the petitioner. Its order addressed the broader issue of creative works with “political contents”, rather than just the Modi biopic. Thus, also cited in the order were two other films regarding which the EC had received complaints.
The first, Lakshmi’s NTR, is a biopic of the late N.T. Rama Rao, directed by Ram Gopal Varma. The film (currently the subject of a petition before the Andhra Pradesh high court) has apparently been narrated from the perspective of Rao’s wife, Lakshmi Parvati, and is critical of the Telugu Desam Party.
The second, Udyama Simham, is a biopic of K. Chandrashekhar Rao.
The EC’s order acknowledged that the above films cannot be categorised as advertisements, and are thus exempt from the scrutiny of media certification and monitoring committees (which are state and district-level committees tasked with monitoring “political advertisements” and “paid news”, established following a Supreme Court order).
Nevertheless, the EC stated that such films could still jeopardise “the level playing field”. The EC cited the Supreme Court’s recent observations in the Bhobishyoter Bhoot case (“once a film has been duly certified by CBFC, it is not open to any authority either of the State Government or otherwise to issue formal or informal directions preventing the producer from having the film screened”).
However, to counterbalance this, the EC cited three other Supreme Court precedents: one containing general observations on the importance of free and fair elections (in a case involving voter secrecy), one upholding residuary powers of the EC in situations that “could not be foreseen, or anticipated with precision” (in a case involving the organisation of a repoll), and the order in the Modi biopic case.
After this questionable cherry-picking, the EC declared that “biopic material in the nature of biography/hagiography sub-serving the purposes of any political entity… which has the potential to disturb the level playing field during the elections, should not be displayed in electronic media including cinematograph” while the MCC is in operation. The order was also extended to cover “posters of publicity material”, presumably including YouTube trailers.
A worrying precedent
I would offer four criticisms against the order.
First, its condescension towards the intelligence of the urban middle-class voter (the film’s target audience) is silly. If a voter has access to watch the film in a theatre or on the internet, he or she surely has access to news channels and social media as well. The latter mediums expose voters to ample content that may equally disrupt the “level playing field” either way.
Unlike in the case of paid news, where a voter may genuinely be deceived, a film viewer should be assumed to have the mental capacity to distinguish between Bollywood Modi (with poor prosthetic make-up) and real-life Modi.
Thus, why not interpret the Supreme Court’s leeway to the EC to impose “conditions” on the film’s release to mean the insertion of a disclaimer at the start of the film? Even one where the viewer is advised to visit the website of the Indian National Congress (or pick up a copy of The Telegraph) for a contrary view on Modi? Why withhold release entirely?
Second, films already undergo certification from the CBFC prior to release – the key reason why the Supreme Court rebuked the West Bengal government for banning Bhobishyoter Bhoot and has now directed it to pay a hefty fine.
How fair is it to establish a parallel censorship khap panchayat and inconvenience producers and theatres? Some fifty years ago, the Justice Khosla Committee, tasked with reforming film censorship laws, had observed that the Indian Constitution permits a “a great deal of latitude” in political speech, and that India has a “perfectly good law” on defamation for aggrieved parties.
Why should this not hold true for the Modi or NTR biopics, if they have indeed slandered politicians?
Third, just as Article 19(1) of the Constitution gives citizens the right to freedom of speech and expression, it also confers the right “to carry on any occupation, trade or business.” Why shouldn’t filmmakers be given the freedom to make a quick buck during election season by releasing political films, even if one-sided and propagandistic? Why should filmmakers act as conscience keepers when television news channels – which possess far greater influence and misuse it daily – don’t?
Fourth, the order is much too vague. In a country where assembly elections occur every few months, a film released pretty much anytime has the potential to threaten the “level playing field”. Furthermore, the order could be misused by sundry political activists to thwart a range of films.
Among this year’s other “pro-BJP” films, The Accidental Prime Minister could perhaps be placed in the same category as the Modi biopic, but arguably not Uri: The Surgical Strike or the upcoming Tashkent Files (whose trailer suggests it discusses conspiracy theories surrounding the death of Lal Bahadur Shashtri and shows the Nehru-Gandhi family in unflattering light).
In such cases, how will the EC objectively determine what a biopic is, or what a film with “political contents” is? And what about a film like Bhobishyoter Bhoot, which attacks the Trinamool Congress through indirect, but fairly transparent allegories?
On social media, many appear to be celebrating the EC’s order for halting the BJP’s powerful propaganda machine. Such individuals miss the fact that the order has created ambiguities that may also stall films and documentaries sympathetic to their viewpoint.
The same rules that apply to a film glorifying the BJP must also apply to an Anand Patwardhan documentary condemning it. Thus, the EC’s order should be struck down, the right to propagandise through cinema upheld, and the Indian voter assumed to be smarter than given credit for.
Arpan Banerjee is an assistant professor at Jindal Global Law School and a Scientia doctoral scholar, University of New South Wales. He is currently writing a book on film censorship in India.