Paid News Report : Curbing “paid news” using extant legal provisions: Dr Madabhushi Sridhar’s suggestions

Speaking to the Press Council of India on February 10, 2010, in Hyderabad, Director of the Centre for Media Law and Policy, Hyderabad, of the National Academy of Legal Studies and Research (NALSAR), Dr Madabhushi Sridhar, said the “paid news” phenomenon represents a “fatal combination” of three “Ms”, namely, the media, money and mafia, that has subverted free and fair elections. He said that earlier, politicians used to hire musclemen with huge amounts of money and train them in booth rigging. “Now…candidates are training media pens instead of mafia guns to ‘rig’ the minds of people with constant opinion bombarding,” he stated.

Dr Sridhar stated that news items misguide readers about particular candidates by reporting that they are forging ahead in elections. “They use expressions which are most of the time absolutely false. The lack of truth in such statements can be easily verified as the same page of the same newspaper also publishes a similar story about a rival candidate. It is also reported that some pages of district edition tabloids were changed twice or thrice every day to accommodate the ‘success trail’ of different candidates in the same constituency.”

Dr Sridhar says that that the “Election Commission has prohibited exit polls and opinion polls and surveys by any media before the polling process is completed. This is based on the principle that news about one party’s candidate winning from one constituency should not influence voters in different parts of the state or country to favour the winning party. If the media takes money to say a particular candidate is receiving unprecedented support from the people, it could send a signal to others influencing them to vote for him. A frenzied campaign based on fabricated stories about people supporting one candidate or the other is a misuse of freedom of expression both by candidates and by the media.”

Dr Sridhar argues that the trend of publishing news for money is on par with criminalisation of elections. “It is not just a breach of media ethics or impropriety and not just the concern of the Press Council of India. It is a crime against democracy, punishable under law…the syndrome is just not the concern of the Press Council of India but a real challenge to the Election Commission of India, whose sole aim is to conduct free and fair polls….”

Dr Sridhar added: “Under Section 123 of Representation of People Act 1951, bribery, undue influence, appeal on the ground of religion, caste, etc, publication of false statement relating to a candidate, free conveyance of voters, incurring of election expenditure in excess of the prescribed limit and seeking assistance of government servants are all considered corrupt practices. In 1989, booth capturing was added as another ‘corrupt practice’ in the law.  In the present context, the media sold space and time to perpetrate undue influence and by the publication of false statements relating to winning chances of a candidate. In the process, the candidates spent huge amounts of money for coverage ‘packages’ which is a corrupt practice. These aspects have to be considered, investigated and prevented by the machinery of the Election Commission of India, as and when such things are happening. The Commission should not leave it to be decided at the time of hearing of election petitions, which means that the state would allow perpetration of corrupt practices and then wait for ‘proof’ of the same before election tribunals…

“When the Press Council of India asked Maharasthra Chief Minister Shri Ashok Chavan to answer allegations relating to ‘paid news’ items that were published about him, he reportedly stated that the ‘appropriate forum’ to respond to is a court of law where election petitions are heard. This implies that unless the allegations are meticulously proved, it is almost impossible to handle ‘paid news’ offenders, who might by that time, reap the benefits of getting into positions of ‘power’…In Andhra Pradesh, the election tribunal (or the High Court) admitted an election petition by a candidate who contested and lost the election alleging that massive media opinion rigging was cause of his defeat.

“After declaring candidates elected, the only remedy before a losing candidate is to challenge the validity of the election… But, this legal procedure is time consuming. By the time, the court’s verdict reaches a final stage and assuming that the allegations of the complainant are upheld and conviction is confirmed, the winning candidate would have served much of his term before ‘justice’ is delivered to losing candidate. If losing candidates do not choose to get involved in a prolonged legal battle, the elected candidate may amass wealth during his term as an elected representative…Thus, the Election Commission has to become more responsible in preventing this unfair information war which favours paying candidates and is heavily against the interests of voters of this country.”

Dr Sridhar argues that “undue influence” by the media to curb free exercise of electoral rights is an election crime under Section 171C of Indian Penal Code as well as the Representation of the People Act, 1951. While the Act explains “undue influence” in general terms and supplemented the explanation with an example that threatening a candidate or elector with injury, or consequence of divine displeasure if not favoured would constitute the undue influence. Section 171C of the IPC also refers to similar language used in Section 123 and states that this is tantamount to interference or attempt to interfere with the free exercise of an electoral right.

The punishment for the offence of undue influence is prescribed under Section 171F of IPC, which says punishment of imprisonment up to one year or fine or both could be imposed. In both laws, whereas the first part is a general definition which could include any attempt to unduly influence, the subsections in both laws provide examples of undue influence but these are not limited to these examples only. Subsection (2) of Section 171F of the IPC starts by stating “without prejudice to the generality of the provisions of subsection (1)” and this means that any undue influence not contemplated by this law might also be offensive. This could include the media’s interference through “paid news”, argues Dr Sridhar. Voters can be influenced with statements of the good deeds of the candidates and their achievements, but these should not be “undue” and become tantamount to “abuse of influence” (Bachan Singh versus Prithvi Singh, AIR, 1975, SC 926). The Supreme Court said (Shiv Kripal Singh versus V.V. Giri, AIR, 1970, SC 2097) that “what amounts to interference with the exercise of an electoral right is ‘tyranny over the mind’”.

Dr Sridhar argues that under both laws (the Representation of the People Act and the Indian Penal Code), not only any interference, but also an attempt to interfere with free exercise is defined as an electoral offence. He says that if the content of each “paid news” item is examined, the possibility of direct or indirect interference or attempt to interfere on behalf of a candidate with the free exercise of electoral right would be discovered if the reporter or the publisher were acting on behalf of the candidate as either of them took money to write such a news item during the election campaign. Dr Sridhar cited two examples of newspaper headlines, one which suggested that a candidate had “divine blessings” while the other claimed on behalf of a candidate that “though others distributed money, votes will be polled in favour of candidate Abbayigari Abbayi”. While the first headline seeks to influence votes using a divine reference, the second alleges that candidates distributed money. According to him, these two claims could be construed as criminal offences committed by the concerned newspaper under both the laws.

Publication of a false statement is both corrupt practice and electoral offence, Dr Sridhar adds. To be precise, the circulation of falsity during an election is a clear offence, he says, arguing that there is a need to investigate campaign advertising camouflaged as news during elections and prosecute offenders, whether these be poll agents or media personnel, because such “paid news” items contained false statements that may have violated the provisions of Section 123(4) of the Representation of the People Act, 1951.

Section 123(4) of the Act defines a corrupt practice as: “The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent  of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being  a statement reasonably calculated to prejudice the prospects of the candidate’s election”. Dr Sridhar says this definition could include the media which publishes or broadcasts statements after taking money which amounts to receiving the consent of a candidate or his agent.

Critical remarks about the personal character or the conduct of a rival candidate or propagating false information about other candidates would squarely fall within the ambit of a corrupt practice, argues Dr Sridhar. He says that if a statement published or broadcast is proved to be false, the concerned newspaper publisher or owner of a television channel could be prosecuted under section 171G of the IPC which reads: “Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with (imposition of a) fine.” He contends that this interpretation of the word ‘falsity’ decides the criminality of the publication or broadcast.

Dr Sridhar says that if newspapers become akin to pamphlets of politicians during election campaigns, they should be treated as such. Section 127A of the Representation of the People Act, 1951, states that every pamphlet has to print the names and addresses of the printer and publisher and that every publisher shall send one copy of such publication to the Chief Electoral officer in the capital or to the District Magistrate and that any person who contravenes this provision shall be punishable with imprisonment for a term which may extend to six months or with a fine which may extend to Rs 2,000 or both. The concerned newspapers might have not violated Section 127A (1) as they generally publish the name of the printer and publisher every day but by not sending a copy to the Chief Electoral Officer or District Magistrate clearly marking which part of their newspaper is in the nature of a pamphlet or advertisement, the newspaper may have committed a crime under Section 127A(2)(b) of the Act.

In case the expenditure on “paid news” together with other expenditures incurred by a candidate exceeds the prescribed limits laid down in the Conduct of Election Rules, Section 77 of the Representation of the People Act would have been violated. Dr Sridhar points out that every District Magistrate in his capacity as Returning officer or District Election Officer has the power to issue a notice to each newspaper and candidate to furnish details relating to the “sale” or “purchase” of news columns and also submit copies of the publication to verify whether the reports therein are false or not or cause undue influence that could materially affect the outcome of the election.

Dr Sridhar adds that the Income Tax authorities have enough power to demand details of such financial transactions and impose a tax if necessary on the concerned media companies. If “paid news” items are found to have materially affected the prospects of a candidate or adversely affected the prospects of his or her rival candidate, it could become a ground for the Election Commission of India declaring the election of the winner as void under Section 100 of the Representation of the People Act, he argues. If it is proved that a candidate is guilty of having indulged in a corrupt practice, then he can be disqualified from contesting elections, according to the provisions of Section 8A of the Act. Along with him, those who committed this corrupt practice would also forfeit their right to vote under Section 11A of the Act. The Election Commission is empowered to enforce these provisions of the law.

Dr Sridhar points out that if what has been published is presumed to be an advertisement, then too the newspaper may be held liable for breach of the advertising code of conduct. The Cable Television Networks Rules, 1994, prescribe a number of guidelines for advertisements broadcast by television channels. Rule 7 says that advertising carried shall be so designed as to conform to the laws of the country and should not offend the morality, decency and religious susceptibilities of the subscriber.  No advertisement shall be permitted which:

• derides any race, caste, colour, creed and nationality;

• is against any provision of the Constitution of India;

• tends to incite people to crime, cause disorder or violence or breach of law or glorifies violence or obscenity in any way; etc.

The rules also specify that no advertisement shall be permitted the objects whereof are wholly or mainly of a religious or political nature and that advertisements must not be directed towards any religious or political end.

Dr Sridhar points out that during elections, the Election Commission of India is immune from judicial, legislative and executive interference and has to ensure that candidates do not spend more than the limits prescribed, spread false information or exert undue influence. Even after elections are over, the Election Commission can continue to direct officers through the governments concerned to prosecute offenders in courts of law. He suggests that the Press Council of India should constitute a special task force in each district during the elections to receive complaints, make preliminary studies and report to Election Commission of India to initiate action against specific candidates, publications or television channels, if necessary. Initiation of proceedings for prosecution against media personnel and media companies could prove to be more effective than the Press Council of India issuing strictures and admonishments against errant media personnel and giving these wide publicity, Dr Sridhar opines.

He believes that while existing legal provisions are adequate to punish offenders, the provisions of the IPC could be amended to enhance the quantum of punishment and fine for electoral offences. After a complaint is received and a press clipping provided alleging publication of “paid news”, it should be presumed that the company or individual against whom such an allegation has been made is guilty and the burden should shift to the accused to prove his or her innocence. If the content of the “paid news” item is excessively tendentious or exaggerated, the presumption of liability should go up. Dr Sridhar argues, adding that over and above the suggestions outlined, the Press Council of India should shape public opinion and make more people aware of the implications of the pernicious practice of “paid news”.

In the opinion of the Press Council of India, Dr Sridhar’s recommendations are extremely comprehensive and cogently presented and deserve serious consideration.