The local newspapers in Haryana and Maharashtra, right on the day of the recent elections, printed an advertisement featuring Prime Minister Narendra Modi and their respective chief minister candidates. This began a string of debate as to whether or not such an act before the elections are justified. The Wire reported on the matter saying that while it can be found to be ethically wrong, ‘it will pass the test of legal scrutiny’. The report suggests that the Election Commission in an appeal to the Central Government has requested to amend Section 126 of Representation of People Act, limiting its scope in allowing such advertisement. However, the said appeal was not responded by the Modi led BJP government.
Previous propositions by the Election Commission to amend Section 126 of the RP Act, 1951:
This is not the first time and the only government who has turned a deaf year towards the appeals made by the Election Commission. On various previous occasions as well, the calls of amending Section 126 of the Representation of Peoples Act that allows such advertising during the ‘period of tranquil’, has been ignored. However, on searching a similar provision in the electronic media, governed by a separate regime, such advertisements are barred in the ‘silence period’. Forty-eight hours before the end of voting is the ‘silence period’ where such publications cannot be put out.
N. Gopalaswami has told the Wire that the Election Commission cannot act on its own, it is now the Central Government who will have to react on the matter. He told that the EC has been writing to the Central Government on this matter since 2004 or even earlier. In 2015, the EC brought rules that made pre-certification of campaigning material mandatory before any such publication in newspapers during the 48 hours. However, social media platforms, which are said to influence election outcomes heavily, were kept outside the purview and the scope of these pre-screening and prohibition rules.
Former Chief Election Commissioner N. Gopalaswami said in a conversation with The Wire
“The fact that parties still manage to place advertisements in newspapers on voting day is due to a lacuna in the law, and till the time it is rectified this anomaly would remain.”
Therefore, the 48-hour silent period has its own gaps as though it bars advertisement through electronic media, but there is no similar prohibition for print media. It has been a delayed demand of the Election Commission to put all media in the same footing and make a complete ban in the 48 hour silence period. The law on electronic media came way later after the law governing print media. Therefore, while the former came up with a law, the absence of a similar provision in the latter was ignored, creating the inconsistency.
Electoral Reforms & proposals of the EC:
The CEC has been dutiful when it comes to matters of electoral reforms required, and the amendment of Section 126 of the Representation of People Act is one of the most pressing issues. The same is reflected on the website of the EC under the listed suggestions for electoral reforms. However, for the past one and a half-decade, no government has acted in this regard. The issue that has kept this in the pipeline for so long as the EC cannot approach the Supreme Court for the non-responsive attitude of the subsequent governments in power. However, N. Gopalswami has said ‘an NGO could certainly do so’.
Committee to review Section 126 & proposals thereof:
The EC constituted a committee under the chairmanship of senior deputy election commissioner Umees Sinha last year. The rationale behind the committee was to review the Representation of the People Act, 1951 and suggest amendments like one to Section 126. Apart from the central statute, also check the provisions of Model Code of Conduct and any other EC instructions in this regard submitted its report to the Commission.
The committee was empowered to study and examine the present provision of Section 126 as well as other sections of the Representation of the People Act, 1951. Moreover, it had to do so with a vision to identify difficulties/critical gaps in regulating the violation of the said provisions of the act, particularly during the prohibitory period of 48 hours (silence period) before the completion of the poll, mentioned in section 126 and suggest necessary amendment/modification. So the idea was to build on the existing jurisprudence of the silence period. The committee was to examine the type, category or growth of communication technology or media platform in the country. This had to be done in order to identify the difficulties in regulating these media platforms during multiphase elections when a prohibitory period of 48 hours is in force. With the new media platforms rising in the country and especially with the trending social media, the impact needs to be assessed as to how the silence period of 48 hours before the close of the poll will be thoroughly observed.
The panel, after a thorough review, submitted its report to the EC in January 2019. The report stated that “the recommendations made by the Review Committee, when implemented (after adoption by the EC with necessary modification or additions), will help in minimizing the possible interference of activities which aim at indirectly influencing voters during the valuable silence period of 48 hours provided to them. The recommendations of the Review Committee will be considered by the Election Commission in detail for follow up action.”
Communication by the EC to the chief electoral officers:
Right after the submission of the said report by the panel, the Election Commission sought an amendment by placing a similar a 48 hours restriction period on any publication or political advertisement coming on the social media or other digital platforms in the final 48 hours before elections.
Quoting “people in the know”, a report by The Economic Times added that,
“The EC has written to the law ministry, suggesting to extend the provisions under Section 126 to digital and print media as well, keeping in mind the differential approach to print and electronic media, and the rising impact of social media on elections.”
However, despite the long and unwavering effort by the EC, they have failed to receive a response from the law ministry in this connection. The EC spokesperson said to The Wire “No response has been received as yet from the law ministry.”
48 hours silence period in Haryana & Maharashtra Elections:
Recently, the Election Commission communicated to all the chief electoral officers of Haryana and Maharashtra, where fresh polling was held, calling for all the political advertisement going in print media 48 hours before the poll to go for ‘pre-certification process’. The letter read as follows:
“In order to ensure that such instances are not repeated, and no untoward incident takes place because of any inflammatory, misleading or hate advertisements, the Commission, in exercise of its powers under Article 324 of the Constitution, and all other powers enabling it in this behalf, hereby directs that no Political Party or Candidate or any other Organization or Person shall publish any Advertisement in the print media on poll day and one day prior to polling day, i.e. 20th and 21st October 2019, unless the contents of the advertisement proposed to be published by the Political Parties, Candidates etc. are got Pre-certified by them from the MCMC Committee at the State/District level, as the case may be, in your State. ”
Moreover, in the said communication, the EC had been told that in the past, various instances of advertisements of offending and misleading nature published in print media had been brought to the notice of the Commission. It further remarked that such publications in the last stage of the election have the potential to vitiate the entire election process. Also, the candidates and parties affected by such a move will not have an opportunity of providing clarification/rebuttal in such cases.
Therefore, right ahead of assembly polls, the EC directed the vetting of all political ads, in order to make sure that such untoward instances are not repeated, and no incident takes place because of any inflammatory, misleading or hate advertisements in the silence period. It was also directed by the EC that nowhere in the print media any ad will be published on the poll day and one day prior to the poll day, which is the silence period. However, the same is allowed if the contents had been got pre-certified from the Media Certification and Monitoring Committees (MCMC), which have been constituted at both the districts and state level.