Paid News Report : Rules and Regulations of the Election Commission of India

On December 16, 2009, two representatives of the Election Commission of India deposed before the Press Council of India and inter alia stated that under the existing laws of the country, there is no ceiling on election campaign related expenses by “political parties for their general party propaganda”. According to the Election Commission of India, when a political party incurs expenditure to promote the interest of any particular candidate – as distinct from “general party propaganda” – such expenditure forms part of the candidate’s expenditure. The only exception relates to the expenses incurred by 40 leaders of a recognized national or state party and 20 leaders of a registered (unrecognized) party on their travel in connection with election campaign, according to Section 77 of the Representation of the People Act, 1951 and Rule 90 of the Conduct of Election Rules, 1961. Section 171H of the Indian Penal Code prohibits all expenses by supporters, voters etc. of a candidate, without his authorization.

The Election Commission stated that advertisements on the electronic media (radio, television and the internet) are regulated by the order of the Supreme Court of India dated April 13, 2004 (in the case of Secretary, Information & Broadcasting, Government of India versus M/s Gemini Television Pvt Ltd [2004(5) SCC 714]) and the order of the Election Commission of India dated April 15, 2004, pursuant to the Supreme Court’s order. There is an anomaly in that this order does not extend to the print medium but only relates to the electronic media. Thus, whereas television channels and radio stations are prohibited or banned from broadcasting election campaign related news after campaigning stops 48 hours before polling is scheduled to take place, a similar ban does not apply to the print medium and hence, newspapers carrying election campaign related news and advertising even on the morning of polling. The Press Council of India is of the view that this anomaly should be rectified with immediate effect by the Election Commission of India and it appears unlikely that this rectification would be opposed by owners of media companies simply because it would place on par both the print and the electronic media.

In order to keep a check on the expenditure incurred by political parties, their candidates and others and also to ensure that no one prints any material in the form of advertisements, pamphlets etc., that could be considered scurrilous or objectionable, the following restrictions are imposed under Section 127 A of the Representation of the People Act, 1951.

Section 127 A of the Act states:

1. No person shall print or publish, or cause to be printed or published any election pamphlet or poster which does not bear on its face, the names and addresses of the printer and the publisher thereof.

2. No person shall print or cause to be printed any election pamphlet or poster – (a) unless a declaration as to the identity of the publisher thereof, signed by him and attested by two persons to whom he is personally known, is delivered by him to the printer, in duplicate; and (b) unless within a reasonable time after the printing of the document, one copy of the declaration is sent by the printer, together with one copy of the document – (i) where it is printed in the capital of the state, to the Chief Electoral Officer; and (ii) in any other case, to the district magistrate of the district in which it is printed.

3. For the purposes of this section – (a) any process for multiplying the copies of a document, other than copying it by hand, shall be deemed to be  printed and the expression “printer” shall be construed accordingly; and (b) “election pamphlet or posters” means any printed pamphlet, handbill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having references to any election, but does not  include any handbill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instructions to election agents or workers.

4. Any person who contravenes any of the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to Rs 2,000, or with both.

Further, in order to monitor the expenditure of political parties and candidates, the Election Commission of India has issued standing instructions to be followed by those who are responsible for the printing and publication of such election posters and pamphlets, etc., as follows:

(1) As soon as any election from a Parliamentary, assembly or council constituency is announced by the Election Commission, the district magistrates, shall, within three days of such announcement of such an election write to all printing presses in their district

(a) Pointing out to them requirements of Section 127(A) and specifically instructing them to indicate clearly in the print line, the names and addresses of printer and publisher of any election pamphlets or posters or such other material printed by them;

(b) Asking the printing presses to send the copies off the printed material (along with three extra copies of each such printed material) and the declaration obtained from the publisher, as required under Section 127(A)(2) within three days of its printing;

(c) Impressing on them in clear terms that any violation of the provisions of Section 127(A) and the above directions of the Commission would be very seriously viewed and stern action which may in appropriate cases include even the revocation of the license of the printing press under the relevant laws of the state would be taken.

(2) The chief electoral officers shall do likewise in respect of the printing presses located in the state capitals.

(3) Before undertaking the printing of any election pamphlets or posters etc., the printers shall obtain from the publisher a declaration in terms of Section 127(A)(2) in the proforma prescribed by the Commission.

(4) As directed above, the printer shall furnish four (4) copies of the printed material, along with the declaration of the publisher within three (3) days of the printing thereof. Along with such printed material and the declaration, the printer shall also furnish the information regarding number of copies of the document printed and the price charged for such printing job in the proforma prescribed the Commission. Such information shall be furnished by the printer not collectively but separately. In respect of each election pamphlet, poster etc., printed by him within three (3) days of the printing of each such document.

(5) As soon as the district magistrate received any election pamphlet or posters etc. from a printing press, he shall examine whether the printer and publisher have complied with the requirements of law and the above directions of the Commission. He shall also cause one copy thereof to be exhibited at some conspicuous place in his office so that all political parties, candidates and other interested persons may be able to check whether the requirements of law have been duly complied with in relation to such document and which would also enable them to bring to the notice of the authorities concerned the cases of other election pamphlets, posters, etc., in respect of which the above requirements of law have been violated.

(6) The chief electoral officer shall also likewise take further follow-up action as mentioned in sub para (5) above in respect of the pamphlets, posters, etc., received by them.

According to the Election Commission of India, it has been observed that the above-mentioned restrictions on the printing and publication of posters and pamphlets and the obligations to be fulfilled thereunder, by the printers especially, are “seldom observed”. Rarely are copies of the posters etc. printed by the printing presses furnished to the District Magistrates and the Chief Electoral Officers concerned, said the Election Commission of India in a statement to the Press Council of India. In one particular case, the commission observed certain press advertisements appearing in a leading national daily, which did not disclose the name of the publisher of that advertisement. The commission considered it to be a violation of the said Section 127(A). When asked by the commission to give the details as required under Section 127 (A), the newspaper refused to part with that information on the plea that the said Section 127 (A) did not apply to newspapers.

When the Press Council of India contacted Shri S.K. Mehndiratta, Legal Adviser to the Election Commission of India, he stated that the newspaper being referred to by the Commission in this context was the Times of India and that the letter had been issued by the Commission to the newspaper before the 2004 general elections.

According to the Election Commission of India, political campaigns being carried out by certain organisations or individuals either espousing the cause of a particular political party or a candidate or projecting a political party or a candidate in negative terms so as to prejudicially affect their political prospects, through surrogate advertisements, was posing problems, in effectively monitoring the election expenditure of candidates. Advertisements in a surrogate manner were resorted to earlier, as the understanding of the law under Section 77 of the Representation of the People Act, 1951, at that time, was that candidate was not accountable for any expenditure incurred by any organisation, or his friends and supporters. The Election Commission of India then issued the following standing instructions in the matter:

“The following points may be noted in respect of the advertisements that appear in the print media, especially newspapers, for and against particular political parties and candidates during election period:

(a) In the case of advertisements, the source of which is traceable, the following action may be taken:

(i) if the advertisement is with the consent or knowledge of the candidate, it will be treated to have been authorised by the candidates(s) concerned and will be accounted for in the election expenses account of the candidate(s).

(ii) if the advertisement is not with the authority from the candidate, then action may be taken for prosecution of the publisher for violation of Section 171(H) of the Indian Penal Code (incurring expenditure in advertisement without written authority from the candidate(s) concerned).

(iii) if the identity of the publisher is not indicated in the advertisement, then you may contact and get the information from the newspaper concerned and consider appropriate action, as above.

With a view to curbing expenditure on what it described as “surrogate advertisements”, the Election Commission of India also made the following recommendation to the government of India in 2004, as a part of its package of electoral reforms:

The Election Commission of India is of the view that “there should be clear provision to deal with cases of surrogate advertisements in the print media. For this purpose, Section 127(A) of the Representation of the People Act, 1951, may be suitable amended, adding a new sub-Section (2A) to the effect that in the case of any advertisements/election matter for or against any political party or candidate in print media, during the election period, the name and address of the publisher should be given along with the matter/advertisement. Sub-section (4) should also be suitably amended to include in its ambit the new proposed sub-section.”

The proposed recommendation of the Election Commission of India has not been given effect to by the government so far. Meanwhile, the law relating to election expenses has undergone a sea change on account of the Election and Other Related Laws (Amendment) Act, 2003, whereby all expenditure incurred by supporters and workers of a candidate is deemed to be expenditure incurred or authorised by the candidate and subject to the overall ceiling fixed on his election expenses under the law.

In its note to the Press Council of India, the Election Commission observed: “Of late, the campaign using the media (especially print media) has taken a more disturbing turn. There have been several complaints of surrogate advertisements or ‘paid news’ appearing in the form of news items. On the face of it, such advertisements give an impression of a genuine news report covering the election campaign of a particular candidate. But when such reports repeatedly appear in that newspaper more or less on a regular basis, the matter does give rise to a doubt or suspicion whether the reports are ‘honest’ coverage of the election campaign of the candidate as innocent news item.”

“The matter”, says the note given by the Election Commission to the Press Council, “assumes bigger dimensions when such ‘news items’ appear in more than one newspaper as ‘word for word’ reproduction or with a few minor deviations. Obviously, in the publication of such news items, there is more than what meets the eye. This trend has implication for the voters’ right to correct information. The Commission has received complaints, mostly informal, that some political parties and candidates have resorted to buying space in the print media by making hefty payments to the journalists or press reporters in return for projecting their image by publishing planted stories at their instance as ‘paid news items’.”

The Election Commission note adds that “the more disturbing phenomenon recently emerging and which is causing serious concern to the commission is the latest complaint to the Commission that some of the newspapers have even offered packages at hefty sums, offering three types of services – one, projecting the image of a political party or a candidate in a positive manner; two, giving negative publicity to the rival party or candidate. The rates of such packages vary, depending upon the standing and circulation of the newspaper in the area covered by the constituency. These rates further vary depending upon the duration for which such publicity campaign by the newspaper is to be carried out, that is to say, whether for the whole campaign period or for the last one week of the campaign period or even for the shorter duration close to the day of poll. This worrisome phenomenon is causing concern not only to the Election Commission but also to the entire enlightened section of the society and even to some of the sections of the print media and political formations. But sufficient initiative from political parties or media to counter this problem is yet to be seen on (the) ground.”

The Election Commission of India asked the Press Council of India “to devote serious consideration to this growing menace which, if not checked in time, may erode the credibility of the electoral system. As any consideration of surrogate advertising will also involve issues like media regulation, media freedom, media ethics, etc., the Press Council of India may like to suitably address it. In particular, the commission would like some guidelines to be laid down by the Press Council of India to determine what is ‘paid news’, so that the expenditure incurred by political parties and candidates on such paid news may become accountable.”

The Press Council of India is of the opinion that is, in fact, very easy to define paid news: it is an article in a newspaper/magazine or a television broadcast that appears as a news item, where, though the contents appear to have been independently produced, in reality and in fact, a financial transaction has taken place that has facilitated the publication or broadcast of the news item. The problem is not in defining what “paid news” is but in trying to establish that money has changed hands, that a payment has been made by a candidate who has stood for elections or his political party or his representative or associate to a representative of a media company that has published or broadcast the so-called “news” in favour of the concerned candidate. Since such payments are invariably made in a clandestine or illegal manner, in the form of hard cash and not by cheque, and since official records (in the form of receipts or bills/invoices) are deliberately not kept or recorded in the concerned media company’s balance sheet or statements of account, the only way such transactions can be unearthed if search-and-seizure raids are conducted by the concerned law-enforcing authorities, including officials of the Income Tax Department or members of the police force.

Before proceeding further, it is worthwhile to reiterate why publication or broadcast of “paid news” is bad for the media itself since it is inimical to its credibility as a provider of independent, balanced and fair information. The idea that the media plays a central role in the maintenance of a democratic society has framed debates about media ethics. A healthy democracy requires, among other things, the participation of informed citizens, and one of the roles of the media is to enhance the level of public participation by providing information and analyses on a range of political, economic, social and other issues. This information thus has to be as truthful and objective as possible.

Unfortunately, sections of the media in India have begun to treat the political arena like any other market. The underlying assumption is that if the politician pays, he will be covered in a complimentary and favourable manner. Instead of proving objective and unbiased information, publications that put out “paid news” items that are akin to pamphlets praising candidates, eventually end up damaging – if not destroying – their own credibility. Whereas such malpractices were confined to individual transgressions and to a few newspapers and television channels in the past, the sheer scale of what has taken place is alarming and frightening for this phenomenon strikes at the very core of democracy by turning the media which is supposed to be the fourth estate and a watchdog of society into a “first estate” of sorts by adversely influencing democratic processes.