Paid News During Elections In India

The Press Council of India in its report on paid news has observed that the malady of paid news goes beyond the corruption of individual journalists and media companies and has become pervasive, structured and highly organized.^[1] The definition of paid news, as endorsed by the Election Commission of India is "any news or analysis appearing in any media (Print and Electronic) for a price in cash or kind as consideration".

Though printed on the same page, there is a stark distinction between News and advertisements. News is meant to be fair, balanced and neutral in contrast to paid advertisements speaking highly of particular brands, products, persons etc. The amalgamation of news and advertisement leads to the unholy nexus called 'paid news'. Innocent readers including voters, who rely on the truthfulness of a news article are constantly coming across such paid news in favour of a particular party or candidate. Such readers can hardly distinguish between actual news and the advertisement of a particular party or candidate published as a news article.

Countering Paid News

The practical difficulty in countering the expanse of paid news is due to lack of any mechanism to prove and punish the perpetrators including politicians, journalists, media outlets etc. The Election Commission of India has published considerable literature and an array of instructions on paid news over the years. Media Certification and Monitoring Committees ('MCMC') have also been constituted to monitor political advertisements during election campaigns. However, due to lack of any effective enforcement mechanism the directions have been circumvented without much effort.

Provisions enacted to curb Paid News and prevalent loopholes and workarounds

Some Provisions enacted and measures taken by the Election Commission of India to curb Paid News –

1. S. 127A of the Representation of People Act, 1951 ('RP Act') make it mandatory for a publisher of an election advertisement, pamphlet etc to print the name and address of the publisher as well as printer.
2. S. 171 H of Indian Penal Code– Prohibits anyone to incur expenditure on advertisement for a candidate without his authority. The offence is non-cognizable and punishment for the same is fine which may extend to Rs. 500/-.
3. Section 77 and 78 of the RP Act 1951 mandate a candidate to maintain and lodge an account of all the expenditure in connection with the election incurred or authorized by him.
4. Inclusion of expenditure as a candidate's notional expenditure in cases where advertisements are promoting that candidate are published and actual expenses are not revealed.^[2]
5. Constitution of Media MCMC at District, State and ECI to inter alia pre-certify political advertisements and scrutinize all media to monitor and locate political advertisements / paid news cloaked as actual news coverage from the date of filing of nomination by the candidate till the completion of elections.^[3] Recognizing the expanding clout of social media in Electoral Campaigns, the Commission has also added a Social Media expert to MCMCs.^[4]

Despite various provisions and instructions, parties, candidates, journalists and media houses find it easy to bypass such provisions. Some examples of how the aforesaid provisions are made ineffective –

1. When false / fabricated / paid material is published in newspapers or TV it is often presented as an actual news article. The requirements under S. 127A of the RP Act, 1951 is only applicable to Advertisements and not news articles.
2. Being a criminal offence, the standard of proof in S.171H is strict. The minuscule punishment also doesn't deter any offenders. A candidate willing to run a paid news campaign can ask any person to get certain paid news published in a newspaper willing to publish such material. Firstly, this detaches the candidate from having knowledge the act and in worst case scenario the person who actually made payments is caught, he would get away with a mere fine of Rs. 500.
3. Despite S. 77 and 78 of the RP Act, 1951 mandating that Election Expenditure incurred or authorized by the candidate or his election agent by maintained and lodged, it does not bring within its purview any covert transaction undertaken by an agent of the candidate. The Hon'ble Supreme Court in Indira Gandhi v. Raj Narain^[5] had held that taking advantage or failure to disavow the same would not lead to a conclusion that either the candidate or his agent had authorized the same. In light of the judgement, it is clear that even if candidate has knowledge of the expenses being incurred for paid news by his agents or he knowingly takes advantage of the same, unless and until direct or implied authorization by the candidate could be shown.
4. Similarly, the limits on expenditure provided by the Election Commission have barely been followed. Candidates use covert means and 'well-wishers' funded by the candidate or party himself to make arrangement for majority of the campaign. As cited above, in case the candidate has not directly paid for the news, linking the same to the candidate is not easy despite such 'news' blatantly canvassing for the particular candidate.
5. A sizeable portion of offending content arises from social media. However, in absence of any amendments in the 1951 Act to include social media, the Commission in consultation with Internet & Mobile Association of India (IAMAI) issued a 'Voluntary Code of Ethics' before General Election 2019. This Code was to ensure that ECI could seamlessly notify any infarctions of Electoral Laws to Social Media platforms and the platforms were to make sure that all social media political advertisements were pre-certified by the MCMC. However, the use of social media during the silence period by candidates or political parties to appeal to voters was not prohibited.
6. Moreover, there is no specific legislation prohibiting dissemination of fake news / libellous content on social media. The spread of fake news / defamatory campaigns is often by the workers of parties or persons linked to politicians benefitting from the same. However, by its very nature, it is very tough to trace when, how and by whom a certain message originated. Moreover, the persons and parties benefitting from such campaigns can always deny knowledge or authorisation for them.

Therefore, the present legal framework is being bypassed by candidates, political parties, journalists etc.

Narottam Mishra Case

The Election Commission on 23.06.2017 passed an Order under Section 10A of the RP Act 1951 disqualifying Dr. Narottam Mishra for three years from the date of the Order for incurring expenditure and exceeding the limit prescribed by the EC on publication of around 42 'paid news' items in various dailys.

That the EC's findings came up for challenge before Hon'ble High Court of Delhi. That the Ld. Single judge of the High Court dismissed the Writ Petition filed by Dr. Mishra and upheld the Order passed by EC inter alia on the grounds that Dr. Mishra had knowledge of the publications, he failed to disavow the said publications and knowingly took advantage of the expenditure.

However, the Hon'ble High Court of Delhi's division bench in Appeal quashed the Order of Election Commission after relying on the judgement in Indira Gandhi v. Raj Narain (Supra.) and holding that to establish disqualification under Section 10 of the RP Act 1951 two things have to be established firstly, that the expenditure incurred by the candidate was beyond the limit prescribed, and secondly, that the expenditure was incurred / authorized to be incurred by the candidate.^[6]

The Division bench of the Hon'ble High Court held that from the facts, it could not be established that Dr. Mishra had knowledge of the publication or implied authorisation to incur the expenditure and therefore, EC's order could not be sustained. The matter is presently pending as a in a Civil Appeal before the Hon'ble Supreme Court.^[7] The decision in the matter may well decide the future and standard of proof for paid news in Elections.

Differential treatment of Television and Print media.

Section 126 of the RP Act, 1951 prohibits any public meeting, campaigning or publication of material related to election on television or cinema during the 48-hour silence period, however, it does not prohibit publication on print or social media. This anomalous situation was inter-alia subject to scrutiny by Committee to examine Section 126 of the RP Act 1951 constituted by the Election Commission of India.^[8]

The Committee had noted that during the 48-hour prohibited period during which no campaigning is permitted, there are many indirect methods adopted by candidates and political leaders which may directly or indirectly influence the minds of voters in favour or against some party/candidate. It was observed that in recent elections political parties had used print media during the prohibited period since the same was not covered under Section 126. To address the issues the committee had suggested amending section 126 of the RP Act 1951 to include "publication, publicising or disseminating any election matter by means of print or electronic media." as an offence. ^[9]

The Election Commission has pushed for various legislative reforms including making paid news an electoral offense attracting disqualification. The Commission since 2011 has been proposing to the Ministry of Law and Justice, Govt of India to amend the RP Act 1951 and make publishing and abetting the publishing of Paid News an Electoral Offence under chapter – III of Part VIII of the Act.^[10] Thereafter, in February 2020, the Commission in a meeting with Ministry of Law reminded the Ministry of around 40 proposals for electoral reforms which have been pending since long including appropriate legislative amendments to classify paid news as an electoral offence / corrupt practice.^[11] However, the legislature is yet to effectuate the recommendations of the commission.

Conclusion

The Election Commission is aware of the challenge being faced by democracy due to Paid News. However, despite various directions and recommendations, the present legal framework around the issue remains inadequate and insufficient. Unless the 'Paid News' is classified as an offence and such offence is made a corrupt practice resulting in disqualification, present measures to curb it will remain toothless.