Narendra Modi Biopic And The Curious Case Of Fundamental Rights In India

The last few years have been tumultuous for film producers in India. There was reckless rebellion (or paid lobbies) in the lair, waiting to pounce on every other movie that announced a release date. Rightly or wrongly, there have been restrictions and bans on movies in the past as well but they have always been by a statutory body known as CBFC – the Central Board of Film Certification, sometimes colloquially referred to as the Central Board of Film Censorship given its overbearing dictations on the parameters of permissible viewership.

We had just about gotten used to one nosy parent, when another, absolutely unexpected parenting body emerged in the scene – the Indian Courts of law! 2017 and 2018 saw a spew of Public Interest Litigations being filed in courts across the country by groups of people claiming to be outraged by some or the other aspect of movies due for release – be it Deepika Padukone’s Padmaavat, Salman Khan’s Love Yatri or Akshay Kumar’s Jolly LLB 2 among several others.

While the courts have taken a sensible view of allowing these movies to be released, no strictures were passed or costs imposed against the busy bodies who preferred these PILs, so as to deter future miscreants from making similar attempts. It has thus happened yet again.

A few days back, despite the CBFC giving a clean chit to a biopic on Prime Minister Narendra Modi, due release on 11 April, a member of the Congress party represented by senior advocate and top Congress leader Abhishek Manu Singhvi, decided to challenge the release of the movie before the Hon’ble Supreme Court. Their petition prayed for a ban on the release of the movie citing the reason that it being election season, voters would get swayed by watching a biopic on the prime ministerial candidate of the ruling party.

The arguments that made by Singhvi before the Hon’ble Supreme Court, reported extensively on a legal website Bar & Bench, reflected a desperate attempt to establish a financial nexus between the movie and the ruling party.

The court exchange included arguments such as Vivek Oberoi, the lead actor in the biopic, also being a star campaigner for the BJP. Vivek Oberoi is an actor by profession. It would be absurd to suggest that because he has decided to campaign for the BJP, the state must penalise him by harming his commercial prospects as an actor. A similar analogy would be that the legal practice of leading advocates of the Supreme Court must be made to suffer because they owe allegiance to a certain political party and decide to suitably double up as its spokespersons.

The Hon’ble Supreme Court, after hearing the arguments of both sides, refused to comment on the merits of the issue but directed the Election Commission to take a decision instead. It is important to note here, that the Hon’ble Supreme Court, just last month, in the case of ‘Indibily Creative Pvt. Ltd. vs Govt. Of West Bengal [WP(C) 306 of 2019]’ had observed that once the CBFC duly certifies a film, it is not open to any other authority to prevent its screening. The Court held as follows :

Could the Supreme Court then, have transgressed from this principle that the Court itself has repeatedly upheld, without giving any valid or cogent reasons for such departure?

Armed with the new lease of life granted by the Hon’ble Supreme Court, the Congress party approached the Election Commission, which temporarily banned the movie this time around stating that the same was in the interest of ensuring a level playing field to all political parties and was essential to conducting a free and fair election.

Before any further discussion on this issue, it is crucial to remember, that a movie like any other commercial venture entails substantial investments and strict timelines for recovering costs and estimates of profits.

With this in mind, let us understand a few basics. What is the scope of powers of the Election Commission? Could the Election Commission have temporarily banned this movie at all, and if yes, then are there any guidelines to suggest on what grounds such an extreme action may be taken? It would be troubling if there aren’t, because the decision making power would then be essentially arbitrary, which obviously cannot be permitted.

Superintendence, direction and control of elections is vested in the Election Commission under Article 324 of the Constitution of India.

The present power to ban has been exercised by the Commission in the exercise of its powers to ensure the implementation of a Model Code of Conduct.

“Any Biopic material in nature of biography sub serving the purpose of any political entity or any individual entity connected to it, which has potential to disturb level playing field during the election, should not be displayed in Electronic media including cinematograph during the operation of Model Code of Conduct,” the order reads.

A scrutiny of this troubling order would leave us with more questions than answers. The Commission has failed to explain why it has singled out biopics from all other medium of propaganda one may resort to. If a private individual/company decides to endorse a political party by way of an advertisement, would it then be exempt from this ridiculous ban? The answer seems to suggest yes.

Any classification made by a “State” organ, in this case the Election Commission, must meet the twin test of Article 14 – the classification must be founded on intelligible differentia which distinguishes persons or things included in the group from those left out of the group and a rational nexus must be established between the action taken and the object sought to be achieved by such action. The action of the Election Commission falls short on both these counts and miserably fails the test of Article 14.

As an eminent author and Member of Parliament, Swapan Dasgupta asked on Twitter : “ I have a book releasing next month that is sympathetic to the ideas of @narendramodi . Do my publishers have to get EC permission to release it to the market before May 23? Someone may well claim it disturbs the level playing field.”

The answer to his question as of today, is no because the EC order is curiously limited only to “biopic material”. But tomorrow, the answer may be yes. After all the Model Code of Conduct is a vague set of legally unimplementable guidelines.

This indecisive arbitrary use of power gives rise to an ambiguity that spells doom for commercial ventures that may want to rake in some extra profits by cashing in on the election fervour that grips the country and is the truest display of a vibrant democracy. Is it illegal to do so? No law seems to suggest so. What the Supreme Court dismisses as a non-issue, is one concerning important aspects of the exercise of fundamental rights of private citizens of this country. Today it is a movie, tomorrow it could be a book. Interventions such as these are serious invasions of the fundamental rights enshrined in Article 19 and must be held to be so.

The movie in question has been made by private citizens, allegedly associated with the ruling party. Does that curb their fundamental rights during election time? Does that make them lesser citizens of India?

Elections in India are conducted almost throughout the year. The Election Commission obviously cannot make an exception only for the Lok Sabha elections. Would that mean that as and when a local election is held, a private commercial venture that is perceived to be biased towards a political establishment, will be banned in that local jurisdiction?

The only way this challenge could have stood any ground is by proving that the film has actually been financed by Narendra Modi and he has failed to reflect the same in the true and correct expenses that he is required to maintain under the Representation of the People Act 1951. No such nexus has even been attempted to be proved. The slanderers probably knew that it would be an exercise in futility.

It is pertinent to point out here that the Election Commission, while passing the order in question, has made an assumption that a cinematic sketch of Shri Narendra Modi will sway the sentiments of the public in his favour. Would it then not be appropriate for the Election Commission to place extensive restrictions on the content propagated on a daily basis by popular, high TRP news channels? Daily news anchors who have become the equivalent of daily soap celebrities, considering the amount of high voltage drama that Indian political television debates entail – take clear political stands on a daily basis, which can be way more persuasive than a one -time movie experience. Must they be banned too?

The Election Commission’s decision has given birth to a dangerous precedent. The Indian Constitution that enunciates a rule of law, will not permit this to be one stray incident. It will lead to a series of terrible invasions of multiple precious fundamental rights. The Court must intervene and stop this catastrophe before it befalls us.

It is high time that Constitutional functionaries like the Courts and the Election Commission stop micro parenting the Indian electorate. It is insulting to the Indian electorate to be reduced to such a juvenile pliable bunch that requires constant hand holding by a group of individuals who consider themselves to be superior. These institutions must not forget that the Constitution ultimately is by, for, and of this very electorate. An insult to their rights is a direct setback to the exalted rights enshrined in the Constitution of India.