Election Commission

Under scrutiny

Print edition : May 10, 2019

The Actor Vivek Oberoi at the poster launch of the biopic “PM Narendra Modi”, in Mumbai on January 7. Photo: PTI

Officials heading to polling booths in Mangaluru with EVMs and VVPAT machines on April 17. Photo: H.S. MANJUNATH

The logo of Namo TV, which broadcast election material in favour of the BJP without certification from the authority concerned.

Even as the country celebrates its democracy, the Election Commission’s omissions and commissions come under the microscope.

In 1978, the Supreme Court observed in one of its landmark judgments thus: “Where these (laws) are absent, and yet a situation has to be tackled, the Chief Election Commissioner has not to fold his hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the situation.”

The court also added: “An express statutory grant of power to the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty…. That which is clearly implied is as much a part of a law as that which is expressed.”

The Election Commission (E.C.) cited these key passages in the Supreme Court’s judgment in Mohinder Singh Gill & Anr vs The Chief Election Commissioner & Others (1978 AIR 851) to justify its extraordinary intervention on April 10 to ban the release of three biopic films, namely PM Narendra Modi, Lakshmi’s NTR and Udyama Simham, following complaints that they either sought to diminish or advance the electoral prospects of a candidate or political party in the garb of creative freedom.

Biopics of contention

PM Narendra Modi is a biopic on Prime Minister Narendra Modi, while Udyama Simham is a biopic on Telangana Chief Minister K. Chandrashekar Rao. Lakshmi’s NTR is a film on Telugu Desam Party founder and former Andhra Pradesh Chief Minister N.T. Rama Rao’s (second) marriage with Lakshmi Parvathi.

The complainants alleged that such creative content was a kind of surrogate publicity by a candidate or political party during the period when the Model Code of Conduct (MCC), a set of guidelines issued by the E.C., was in force. The MCC came into force on March 10 and will be applicable until May 19, when the seventh and the last phase of the ongoing Lok Sabha election will conclude. The complainants alleged that the biopics had the propensity and potentiality to affect the level playing field, which was not in consonance with the provisions of the MCC.

The E.C. agreed with the complainants that the political content of these films posed a serious threat to the level playing field as it might create an impression of truthfulness of such content being shown through television/cinema/Internet-based entertainment programmes/social media.

On April 9, the Supreme Court in Aman Panwar vs Union of India dismissed a petition seeking a ban on the release of PM Narendra Modi, holding that “whether 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”.

The court added that “if the film is to be so released on April 11, what conditions should govern such release thereafter is a matter that the Election Commission of India has to decide”. Relying on Section 126(1) (b) of the Representation of the People Act, 1951, which prescribes that no person shall display to the public any election matter by means of cinematograph, television or other similar apparatus with a view to attracting the members of the public thereto, in any polling area during the period of 48 hours ending with the hour fixed for the conclusion of the poll for any election in that polling area, the E.C. felt there was an emergent need for intervention to ban the release of the biopics.

The E.C.’s order, while referring to the complaints regarding these biopics in particular, applies to all such films in general, and leaves it to the film-makers themselves to decide whether their films attract the provisions of the Act.

Thus, the operative part of the order said that any biopic material in the nature of biography or hagiography subserving the purposes of any political entity or any individual entity connected to it, which had the potential to disturb the level playing field during the election, should not be displayed in the electronic media, including cinematograph, and in the print media when the MCC was in force.

The E.C. also said that in any cinematograph material, certified by the appropriate authority, if there existed such a violation, or on receipt of a complaint in this regard, a committee duly constituted by the E.C. shall examine the same and suggest appropriate action. This committee, the E.C. announced, shall be headed by a retired Supreme Court judge or a retired Chief Justice of any High Court.

Besides this general order, the E.C. sent individual notices to the film-makers directing them not to exhibit the films until further orders, as facts and material available on record showed that the films were biopics on leaders of parties that had fielded candidates in the upcoming Lok Sabha election.

The producers of PM Narendra Modi appealed against the E.C.’s direction in the Supreme Court, alleging that the E.C. “banned” the film without even watching it and that it ignored the film’s “inspirational” content. The film had already been certified by the Central Board of Film Certification (CBFC), ahead of its scheduled release on April 11. The E.C. was aware of this, and therefore, knew that it was not a competent body to review the film’s fitness for release after the CBFC had certified it. The E.C.’s order thus balanced its lack of competence to review a particular film’s suitability for release during the election with the requirements under the Representation of the People Act, by confining itself to the facts and material available on the record about its contents.

The Supreme Court bench, presided by Chief Justice Ranjan Gogoi and comprising Justices Deepak Gupta and Sanjiv Khanna, however, directed the E.C. to watch the film and share its views with the court in a sealed cover by April 19 so that the bench could decide on April 22 whether the film could be released. To many, however, the Supreme Court’s direction to the E.C. amounted to diluting its powers, after recognising that it indeed had such powers. On March 31, the Bharatiya Janata Party (BJP) launched NaMo TV, a 24-hour television channel, clearly aiming to become the party’s propaganda vehicle. On April 11, the E.C. acknowledged in a letter to the Chief Electoral Officer, National Capital Territory of Delhi, that NaMo TV was a platform service offered by DTH operators to the BJP on a paid basis. It also confirmed that there had not been any pre-certification of the content being displayed on NaMo TV by the Media Certification and Monitoring Committee (MCMC).

NaMo TV

The E.C. emphasised that since NaMo TV/Content TV was sponsored by a political party, all recorded programmes of political contents displayed on the channel/platform would be covered under the purview of the commission’s 2004 order. Accordingly, it reiterated that all political advertisements and recorded programmes with political contents were mandatorily required to be pre-certified by the MCMC before being telecast/displayed.

The E.C. warned that any political publicity material/content being displayed on the electronic media without the requisite certification from the competent authority (MCMC in this case) should be removed immediately and any political content shall only be permitted strictly in accordance with the E.C.’s instructions in this regard.

The E.C.’s silence on the BJP’s continuing violation of the Representation of the People Act intrigued observers. NaMo TV continued to broadcast election material favouring the BJP during the 48 hours preceding the conclusion of the first phase of the election on April 11, without pre-certification of its contents by the MCMC. Still, the E.C. did not find it necessary to register cases against those running the television channel for violating the Act. The E.C., however, intervened to convince the Supreme Court that it indeed had the requisite powers to enforce the MCC, which bars election campaigns that are abusive of rival candidates or are communally provocative. Earlier, the Supreme Court bench expressed surprise when the E.C. claimed that its powers were not adequate to contain hate speeches by rival leaders.

The E.C.’s counsel told the court that it could only issue notices to speakers who had allegedly made hate speeches, and upon considering their replies, warn or rebuke them. Only in the case of repeated violation of its advisories did the E.C. have the power to file a first information report with the police for initiation of criminal proceedings, the counsel said.

The E.C. claimed that it did not have any power to deal with complaints alleging campaign speeches provoking enmity or hatred between classes of citizens or for voting for any person on the grounds of religion, caste, etc., although these were offences under the Representation of the People Act. When the court wanted to examine the legal position, the E.C. swung into action and sought to take punitive action and bar at least four leaders, who had faced complaints of making hate speeches, from campaigning for a certain number of hours.

Thus, it barred Samajwadi Party leader Azam Khan from campaigning for 72 hours for his indecent remarks against BJP candidate Jaya Prada during an election meeting at Rampur. It barred BJP leader and Union Minister for Women and Child Development Maneka Gandhi from campaigning for 48 hours for making communal remarks at Sultanpur, where she said that if Muslims did not vote for her, they would not receive any benefits.

The E.C. barred Uttar Pradesh Chief Minister Yogi Adityanath and Bahujan Samaj Party leader Mayawati from campaigning for 72 hours and 48 hours respectively for making communally provocative remarks. Earlier, it asked Yogi Adityanath to be careful in future, after it found him guilty of making an offensive speech where he said the Indian Army was “Modi’s army”.

However, the E.C.’s continued silence over similar remarks made at Wardha by Prime Minister Modi and the BJP president Amit Shah led to doubts whether it only wanted to take some symbolic actions to show its neutrality. Several observers said that Modi aimed at communal polarisation when he questioned Congress president Rahul Gandhi’s decision to contest from Wayanad, Kerala, by taking advantage of the fact that religious minorities constituted the majority of the constituency’s population.

The E.C. also chose to ignore the election speech of Amit Shah at a rally in West Bengal wherein he had reportedly said that the BJP government would pick up infiltrators one by one and throw them into the Bay of Bengal, while referring to illegal immigrants from Bangladesh. Earlier, his remark describing the immigrants as termites did not attract the E.C.’s censure.

The E.C. also found that Rajasthan Governor Kalyan Singh had exceeded his authority when he publicly wished Narendra Modi another term as Prime Minister. It forwarded this finding to the President, who chose to ignore it.

EVMs and VVPATs

On April 14, opposition parties met in New Delhi to discuss the issue of malfunctioning of electronic voting machines (EVMs) and resolved that they would approach the Supreme Court again to demand that at least 50 per cent of the EVMs be matched with voter-verified paper audit trails (VVPATs) in every Assembly segment. Some 21 political parties have sought this owing to concerns over “malfunctioning” EVMs benefiting the BJP.

On April 8, the Supreme Court directed the E.C. to increase random matching of VVPAT slips with EVMs to five polling booths per Assembly segment, from one at present, saying it would satisfy political parties as well as the electorate.

Notice to Rahul Gandhi

Meanwhile, the Supreme Court also issued notice to Congress president Rahul Gandhi following a petition filed by the BJP that he had “twisted” the Supreme Court’s interim order in the Rafale case, which dismissed the Centre’s claim of privilege over the leaked documents, as holding the Prime Minister guilty of the allegations made by the petitioners through his oft-repeated campaign slogan, “Chowkidar chor hai”.

Observing that the court did not make any such remark, the three-judge bench, presided by CJI Ranjan Gogoi, asked Rahul Gandhi to explain at the next hearing on April 23.

The swift issue of notice to Rahul Gandhi, after hearing BJP leader Meenakshi Lekhi’s petition urging initiation of contempt proceedings against him, surprised observers who wondered whether the court should be wasting its time on interpreting the speeches of political leaders—made during an election campaign—for the possible offence of contempt of court.

Only recently the court had claimed that it did not have the time to hear a petition seeking a ban on political biopics made with a clear motive to upset the level playing field among political parties in the midst of a general election. Ironically, the court, which first left it to the E.C. to decide whether to allow the release of the film, later found reason enough to sit in judgment over the issue.

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