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Why should Indian Creators opt for legal review of their Script?


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(Reprinted with permission from Anamika Jha's excellent blog here:)

By Anamika Jha, Media Lawyer

Recently, I have watched the film, Mimi. I felt good to see the advising law firm of the production house got a flattening credit in the opening slate! Umm, lawyers are also getting acknowledged! However, as a lawyer, I remain uncomfortable throughout the film.  It is a highly engaging film. I loved the humour elements, stunning performance of the actors and the storytelling. I was trying hard to leave my legal brain aside and focus on the entertainment. Despite this, there were several legal flaws in the film that I couldn't ignore (even trying hard!). 

Let me explain to you few major legal flaws in the story of Mimi (spoiler alert!). In the film, a foreign couple hired Mimi as a surrogate in India. The Government of India has banned foreign couples from taking surrogacy services in India since 2015. The Government has proposed to entirely ban commercial surrogacy. In the film, the commissioning parents abandon the unborn child after they know that the child has Down Syndrome. Legally, they cannot just leave like this! ICMR has clear guidelines that they are bound to accept the baby legally and contractually. In the later stage, they threaten to take legal action against Mimi. Her lawyer says that they shall succeed in the action. However, I doubt after being defaulters themselves, they can easily get away with the legal process. They ask Mimi to abort the child at the advanced stage of her pregnancy. However, as per the current legal position, a woman has the discretion to terminate the pregnancy within twenty weeks only.  After ending the film, I replayed it from the starting and then I noticed that in the beginning, they have indicated that this film is set in the year 2013 for a fraction of a second. It should be shown more prominently. Most Likely, a common person, watching the film in the year 2021, will presume that this is the current situation of surrogacy in India! This is the reason why many doctors and people working in the IVF industry have voiced their criticism against the film. 

There are several films (countless TV serials) where we can witness glaring misrepresentation of the factual legal position. For example, in the movie Jolly LLB, the protagonist files a Public Interest Litigation (PIL) in a District Court! Legally, you can file a PIL only in the High Courts or the Supreme Court. Another example is a scene in the TV series Maharani. We see that police are dragging state legislators from the legislative house to arrest them in a corruption case. Legally, police cannot arrest the member of the house while it is in session. This list can go on and on. Unlike our industry, when we see Foreign shows like House of Cards, Tokyo Trials, How to Get Away With Murder, etc., it is rare to see such glaring misrepresentations. It appears that creators have researched how the legal system works (of course, some creative liberties are permissible!) as part of their research. Recently, we can see a few Indian well-researched shows/films where we can see how a police administration and courts work. I shall count Delhi Crime, Section 375, Criminal Justice, etc., in this category. However, in India taking legal advice for the content is not a norm but an exception. 

Recently, one of my clients approached me. He is making a film based on the Domestic Violence Act, 2005 (I have changed the theme due to confidentiality). We had few marathon sessions to ensure that his story is comparable with the legal mechanism in place. He took his creative liberties but assured that courtroom drama is not just a caricature. For example, in the film, no flying witness is storming the Court at the last moment shouting, "Rukiye Judge Sahab….". 
Taking legal advice on the content of your script enhances the credibility of your film. The audience in 2021 is the smart one. We are dealing with Gen Z. Also, we are competing with foreign well-researched content. Even a typical audience having no legal background can point out such flaws. Hence, if we want to create commercially successful and impactful cinema, making the legal review part of our research is desirable. If you are writing about a subject that deals with a particular law, you must have a list of factual and legal questions for your lawyer. Take some time to understand how things work factually and legally. Ask her that how should you show the Court Drama? Is "Mai Geeta pe hath Rakh pe Kasam khati hu..." is a manner to give an affidavit in the Court? Do not hesitate to ask!

I suggest you take expert help. A well-versed entertainment lawyer can provide you with such sessions at an affordable price. An entertainment lawyer deals extensively with creators. She/he understands that you are not making a legal documentary but entertainment content. Hence, her approach remains that you can present your content factually compatible with the legal position and its core entertainment element.  
However, if you still want to make a court drama based on Tarikh pe Tarikh, Tarikh Pe Tarikh punch line, that's ultimately your choice! As you are the boss of the content you create!

Read Anamika's other articles on scripts, movies and the legal bit here at Attorney For Creators.

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