- Professor Madabhushi Sridhar

Director, Center for Media Law Studies & Policy

NALSAR University of Law Hyderabad

If newspaper writes a false story, it is undoubtedly an unethical act. But if media propagates falsity during elections, it could be either electoral crime or corrupt practice. The paid-news syndrome is no more an issue of impropriety, but it is a case of massive perpetration of crimes under Representation of Peoples Act 1951 and Indian Penal Code, 1860.

Whole authority to govern is derived from the votes of the adult citizens of the country. This democracy is inalienable basic feature of Constitution of India. The concept of democracy as visualized by the Constitution presupposes the representation of the people in Parliament and state legislatures by the method of election2. Any influence that hijacks public opinion and affects exercise of right to vote in free and fair manner eats the roots of democracy. Though the political parties and candidates are free to propagate for the voting support, they are precluded from misguiding, spreading untruth, selling impossible promises, using caste or religion or regional feelings, using public money and power and ultimately influencing the voter with allurements of money and sedation of liquor to vote in their favour. All these unreasonable influencing factors were declared illegal. Punishments and disqualifications were also prescribed.

Constitutional Obligation of Election Commission

As Article 324 vested in the independent Election Commission of India, the authority of superintendence, direction and control of the preparation of electoral rolls for, and conduct of, all elections to Parliament and state legislatures, and to the offices of the President and Vice-President of India, it is the imperative duty to ensure free and fairness of the polls avoiding any kind of undue influences, because that alone secures the health of democracy. In pursuance of these functions the entire state bureaucratic machinery is kept under the control and supervision of the Election Commission of India during the process of elections. This power devolves on District Collectors, who as Chief Electoral Officers are supposed to prevent any thing that stops the voters from thinking independently.

Freedom of content

No doubt, the media proprietors have freedom and authority to chose the contents of their page or channel or decide the portion of their space for advertisements3. The Supreme Court of India4 has stuck down the statutes and executive orders of the Government when the State tried to introduce controls on the contents of newspapers, and restrict the space allotted to advertisement saying at least 60 per cent should be of news. It was considered as state’s unreasonable interference with the autonomy of newspaper to decide how to fill their pages, which was violation of the freedom of press guaranteed by the Constitution.

What is happening?

The syndrome of PAID NEWS that crept up into poll scene during 2009 is nothing short of ‘criminalization of political parties’, ‘massive booth rigging’, ‘electronic voting machine manipulation’, or ‘massive distribution of liquor and money a few hours before polling.  It is wrong to say that money for news item is just an unethical practice of camouflaging advertisement as news item, or error of passing off the ‘falsity’ as news event. Heavy monetary packages to campaign for candidate is more than an election crime in which the media men were hand in glove with criminal politicians.

The trend reflects the fatal combination of trinity the Media, Money and Mafia. Politicians used to hire muscle men with huge amounts of money and train them in booth rigging either by hook or crook. Some times they purchased all poll personnel, who usually are teachers and clerks, so that all ballots are polled into their favour wiping out the other contestants.  If both the candidates are powerful in muscle and money besides influential, they used to ‘rig’ in proportion to their ‘strength’. Now the rigging never occurs, not simply because of using EVM, but because candidates are training media pens instead of mafia guns to ‘rig’ the minds of people with constant opinion bombarding to constrain them to vote them. It is the new opinion rigging crime committed by both politicians with their gun men and pen men.

Advertorials, News and Advertisements:

(i) News, (ii) views and (iii) advertisement was old classification of media content. Now it is (i) advertorial (no more editorial), (ii) news (events) (iii) news as advertisements and (iv) advertisements.

The basic norm was that there should be strict separation between news and views which was violated day in and day out. The thin line between ‘news’ and ‘advertisement’ was blurring till recently but totally disintegrated. News was supposed to be regarded as factual reporting of events, and generally the newspaper would not be liable for the truthfulness of the contents of the advertisement unless they contain defamatory or obscene material. Now untruthful news is appearing as ‘event coverage’ which in fact was an advertisement.

The much advanced Andhra Pradesh media has dubious distinction of being the pioneer in paid news syndrome. In 2004 elections the traces of this cancer was noticed in some districts, where in the reporters and advertisement executives collected huge amounts of money to write favourable stories. Where the subeditors or little higher position holders noticed the ‘treachery’ they were also given the share. Earlier, it was limited to a couple of newspapers in a few districts. By 2009, this corruption was institutionalized, newspapers fixed targets for each district bureau, collected huge amounts of money, depriving the reporters of the benefit of exclusively claiming the proceeds without any information. Each and every political party candidate was forced to enter into some package deal with the tabloid newspapers as the continuous campaign of winning stories of their rival candidates created a psychological edge and left a worrying factor in their cadre. Every candidate has to shell down a minimum of Rs. 5 lakh for not writing adverse reports and publishing favourable reports. The space and frequency of exaggerated false favourable reports is directly proportional to the size of the package money.

The deal for undue Influence

Every such item tells the readers that such a candidate is forging ahead leaving others far behind, people are receiving the candidate with great regard. They use expressions like ‘brahma ratham pattaru”, or “prachaaramlo doosuku velli pothunnaru’, “mahilalu mangala harathulu padutunnaru’, ‘yuvatharam utsahamsto urakalu vesthu kerinthalu kottindi’, which are most of the times absolute falsities. The lack of truth in it could be verified with in the same page where the newspaper publishes another similar story about the rival candidate in the same page or the other page or next day. It is also reported that some pages of district edition tabloids were changed twice or thrice every day to accommodate ‘success trail’ of different candidates in the same constituency. One report about successful campaign of candidate ‘x’ would be confined to a particular area or that those pages are made available only to such a candidate, while another edition with a different page writes about enthusiastic campaign of candidate ‘y’ and get that circulated as directed by that candidate.  The headlines in mofusil newspapers of big broadsheet dailies claiming that victory was assured have reflected the dishonest payments behind such writings. Some of such headlines are: “Vijayam Lanchaname” (= victory is just a formality)5, “Bhaaree Majority Dishagaa” (=heading towards massive majority)6, “Ye nota vinna bapiraju gelupu maate” (=every one says Bapiraju will win)7.

These stories claim that a particular candidate would win. Surprisingly, the newspaper did not hesitate to carry three or four such stories ascertaining the victory of the candidates contesting same seat in the same page. One ‘paid-news’ proves the other wrong. Even if there is a single story stating that victory is sure, it could have an undue influence on other parts of the constituency and they may also decide to vote in his favour as he is winning anyway. The Election Commission has prohibited exit-poll opinion survey by any media before the polling process is completed. This is based on the principle that winning news of one party at one place should not influence voters in different part of the state to favour winning party. If the media takes money to say a particular candidate is receiving unprecedented support from the people, it could send an influencing signal to others to vote for him. This frenzy campaign based on fabricated stories of increasing people’s support is misuse of freedom of expression both by candidates and journalists. Thus there is a need to take serious action against paid-misinformation during the polls. What is to be realized is that while generally reporting falsity is question of ethics, circulating falsity on payment during polls is an offence.

In selling absolute falsity or ascertaining the victory of a candidate as daily news in package deal, there is a concerted effort to unduly influence the voters in almost all constituencies. The newspapers had offered different packages such as

    1. regularly writing favorably on front page,
    2. writing favorably in regular succession on front page with color photo,
    3. writing regularly with color photos all through the campaign session, ie, from date of nomination to date of polling with interviews, news analysis, campaign trails etc.
    4. a package to write favorably and also to do negative campaign against his rival candidates.
    5. an informative interview of the candidate with photos on condition that they should purchase 25,000 copies of the newspapers besides some consideration.

The electronic media too followed the trend set by Telugu moffusil print media and sold the slot of space and time of their channel to the political party or the candidate showing the surging crowds to his address from ratham or roadshow.  Nowhere the media made any effort to indicate that it was a sponsored programme or sold out slot or an advertisement.

Crime against Democracy

If it is mere merger of news with commercially paid information, or just commercialization of the media’s influence, or vulgar display of bias towards a particular caste or political party or the candidate, it could be a case of ‘ethics’ or ‘breach of code of conduct’, or ‘impropriety’ etc. But selling the space and time (by print and electronic media) to propagate falsity is something far above the unethical practice which puts the media on par with poll-criminals. It is not only an offence against the professionalism and ethics but a crime against democracy besides being a punishable crime under Representation of People’s Act and Indian Penal Code. The syndrome is just not the concern of Press Council of India but real challenge to Election Commission of India, whose sole aim is to conduct free and fair poll, because media sold ‘free’ news and its freedom for packet, and also spread wrong information to seduce the voters to like a particular candidate. Here again an ethical question arises as the same newspaper, same local bulletin and same page projected the rival candidates for similar amount of money with same quantum of falsity.  With extremely rich candidates contesting elections or extremely enriched legislators seeking re-election were having no dearth of money; the media’s targets were easily achieved8.

Extortion by Media

Some candidates who are not very rich, or fighting elections on their own strength or peoples’ support, complained of extortion by media9. The Hindu reported on this during the Lok Sabha elections, where sections of the media were offering low-end “coverage packages” for Rs.15 lakh to Rs.20 lakh. “High-end” ones cost a lot more10. The State polls saw this go much further. National Election Watch 2009 reported: Your chances of winning an election to the Maharashtra Assembly, if you are worth over Rs.100 million, are 48 times greater than if you were worth just Rs.1 million or less. Far greater still, if that other person is worth only half-a-million rupees or less. Just six out of 288 MLAs in Maharashtra who won their seats declared assets of less than half-a-million rupees. Nor should challenges from garden variety multi-millionaires (those worth between Rs.1 million-10 million) worry you much. Your chances of winning are six times greater than theirs, says the National Election Watch (NEW).

Corrupt Practices

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 the corrupt practices. Later in 1989 booth capturing is also added as another ‘corrupt practice’ in the law.  In the present context, media sold space and time to perpetrate undue influence, publication of false statement relating to winning chances of a candidate, and in the process the candidates spent huge amounts of money for coverage packages which is one of the corrupt practices. These aspects have to be considered, investigated and prevented by the machinery of 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 petition, which means that the state would allow perpetration of corrupt practices and then wait for ‘proof’ of the same before the election tribunals. If this is allowed, the elected politicians, who purchased ‘news’, will take great advantage of it, the statement of Ashok Chavan is an example.

When the Press Council of India asked Maharasthra Chief Minister Ashok Chavan to depose on the allegations of indulging in paid news crime, he had to face the media, where he conveniently tried to escape saying ‘appropriate forum to respond is the court of law the election petitions are tried’11. This means that unless the allegations are meticulously proved, it is almost impossible to handle ‘paid news’ offenders, who might by that time reap the benefits to get into the ‘power’. One truth in his statement is that it needs to be tried in court of law. Whether Chavan’s election was challenged on grounds of ‘paid news’ wrongs? If not, it should be. In Andhra Pradesh, election tribunal (High Court) admitted an election petition by a candidate who contested and lost election alleging that massive media opinion rigging was cause of his defeat.

After declaring the candidates elected, only remedy left is challenging the validity of election and punishing for the poll offences. But by the time the verdict reaches final stage and assuming his conviction would be confirmed, the candidate must have served two terms minimum, before the ‘justice’ delivered. If the rival candidates do not choose to trouble himself in prolonged legal battle, the elected would amass wealth during his term and gets ready for a renewed attack in next election wherein he could purchase more space and sponsor more falsity. Thus the Election Commission has more responsibility in preventing this unfair information war on the side of paying candidates against the vulnerable voters of this country.

Poll Crime (1): Unduly Influencing Voters

Unduly influencing the media is an election crime: Such a propaganda for money camouflaged as a news item has to be examined to see whether it unduly influenced the free exercise of electoral right, which is defined as a crime under Section and 171C of Indian Penal Code and as undue influence under Representation of Peoples Act, 1951. While the RP Act explains undue influence in general terms and supplemented 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 IPC also refers to similar language used in Section 123 saying interference or attempt to interfere with free exercise of any electoral right.

Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election. (171C(1) The punishment for the offence of undue influence is prescribed under Section 171 F of IPC, which says punishment of imprisonment up to one year or fine or both could be imposed. In both legislations the first part is general definition, which could include any attempt to unduly influence. While the subsections in both laws give an example for undue influence, it is not limited to these examples only. The subsection (2) starts with ‘without prejudice to the generality of the provisions of subsection (1)’. This means that any undue influence not contemplated by this law also might be offensive. This includes media’s interference through paid news. Voter can be influenced with good deeds and statements, healthy campaign explaining achievements and prospects, but that should not be undue. It refers to abuse of influence. (Bachan Singh v Prithvi Singh, AIR 1975 SC 926). The Supreme Court said in Shiv Kripal Singh v VV Giri AIR 1970 SC 2097: “What amounts to interference with the exercise of an electoral right is ‘tyranny over the mind’.

As per both the laws (RP Act of 1951 and IPC) not only any interference, but also an attempt to interfere with free exercise is defined as an electoral offence.  If the content of each of such pamphlet in the guise of news item is examined, the possibility of direct or indirect interference or attempt to interfere on behalf of candidate with the free exercise of electoral right would be discovered.  In this case of package deals, the reporter or publisher were acting on behalf of the candidate as either of them took money to write such a news item during the election. Media, receiving money to influence the minds in this context either interfered with or attempted to interfere with, along with the paying candidate. A headline read: “Andari Deevenalu anjibabuke” (All blessed Anjibabu)”. It attempts to show that the candidate has divine blessings to win12. Another headline: “Papinee Vaalladi; Votlu Abbayigari Abbayivi”, (though others distributed money, votes will poll in favour of Abbayigari Abbayi). While first headline influences votes using the divine reference, second headline throws an allegation that others distributed money, but the candidate who paid that media would win. These two statements could make the newspaper accused of crime under  RP Act and IPC.

Poll Crime (2): Spreading Falsity

Publication of false statement is both corrupt practice and electoral offence. To be precise, the circulation of falsity during election is a clear offence. There is a need to investigate into camouflage-news-selling during elections and prosecute the offenders, whether it is poll agent or media person. Because, every such paid news contained false reporting might lead to violation of several other legal provisions, such as Section 123(4) of the Representation of people’s Act, 1951. Section 123(4) defined that corrupt practice as under:

The publication by a candidate or his agent or by any other person which the consent of a candidate or his election agent (this expression include media which publishes statement taking money which amounts to consent of candidate or his 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.

This is most crucial definition the media is expected to know and prevent. Within scope of this definition the paid news, critical remarks about personal character or conduct of any rival candidate, falsity about others and false projection of a candidate also would squarely fall. The truth or otherwise of such comments need to be established and if proved to be false, the candidate and the newspaper reporter or printer could be prosecuted under section 171 G of IPC also. This section says: 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 fine. Thus interpretation of ‘falsity’ decides the criminality of publication. Media is vulnerable here too.

Poll Crime (3): Not indicating and sending ‘Paid News’

The newspapers have been the pamphlets of the politicians during elections. They performed job of a job-work press where the pamphlets are printed. As per section 127A of Representation of People’s Act 1951, every pamphlet has to print the names and addresses of the printer and publisher thereof.  Subsection 2(b) of 127A says that every publisher shall send one copy of such publication to the Chief Electoral officer in the capital and to the District Magistrate in case of a district publication.  Any person who contravenes this provision shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees or with both.  The newspapers might have not violated Section 127A (1) as they generally publish the printers and publishers address every day.  But by not sending a copy to the District Magistrates, clearly marking which part of their newspaper was in the shape of a pamphlet or advertisement, they have committed a crime under Section 127 A(2)(b) which should invite a separate punishment. This section is aimed at providing a regulatory control to the governmental machinery to check unabashed false campaign during elections. Pamphlet will operate as a source and proof of false propaganda of the political party or candidate. By not sending the clearly marked publication copies to the District Magistrate these newspapers-turned-pamphlet printers denied machinery the chance of regulation and thus committed a violation of RP Act.

Poll Crime (4) Excessive Expenditure

These sold news columns will amount to exchange of illegal money between the political parties or candidates and journalists. The income tax authorities have enough power to demand for accounts and tax for this amount. The political party or candidate has to reflect this expenditure in his election expenditure. After adding this expenditure for purchasing news columns if the amount spent exceeds the limit prescribed on expenditure, the consequential legal actions should be taken against such a candidate as per Section 77 of Representation of People’s Act 1951. Media, through RTI applications, recovered the statement of election expenditure by the Chief Minister Chavan which show ridiculously low amount for advertisement, i.e., Rs 5379 only. Both his election expenditure, and the campaign with falsity were not true. These are the provisions which empowered the Election Commission of India to prevent unhealthy criminal practices like ‘paid news’, before declaring the candidates polling highest number of polled votes as winner.

Poll Crime (5) Invalidating Election

In the second phase the false reporters could be convicted and election could be declared invalid. Because this ‘corrupt practice’ of candidate through newspaper reporter or publisher by ‘sold news column’ has materially affected the prospects of a candidate or adversely affected the prospects of rival candidate, it could become a ground for declaring election as void under section 100 of RP Act, 1951.

Poll Crime (6) Disqualification

On proof of this corrupt practice of the candidate, he would be disqualified from contesting election, according to Section 8A of RP Act, 1951, and along with him, those who committed this corrupt practice would forfeit the right to vote Section 11-A of the Representation of People Act, 1951. The machinery of Election Commission should probe into the allegations leveled by the journalists union and Loksatta Candidate and impose disqualifications on candidates from contesting and journalists from voting in coming elections.

Breach of Advertisement Code

If what is being written is believed to be an advertisement, then also it makes the newspaper liable. Besides being criminal, it is also breach of prescribed codes. The Cable Television Networks Rules 1994 prescribes ‘Ten Commandments’ to advertisers on Cable services.  The Rule 7 says that advertising carried in the cable service shall be so designed as to conform to the laws of the country and should not offend morality, decency and religious susceptibilities of the subscriber.  No advertisement shall be permitted which;

(i)               derides any race, caste, color, creed and nationality,

(ii)              is against any provision of the Constitution of India;

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

Other Rules say: No advertisement shall be permitted the objects whereof are wholly or mainly of a religious or political nature; advertisements must not be directed towards any religious or political end.

All the newspapers must voluntarily disclose as to how much money they made and amount of space they sold to the political parties. They have to account for that money and pay income tax and declare it before the Chief Election Officer or District Magistrate. The candidate should reflect that expenditure in his poll expenses report.

Every District Magistrate in his capacity as Returning officer or District Election Officer has to issue a notice to each newspaper and contested candidate to furnish details of the sale and purchase of news columns and also submit the copies of the publication for verification of falsity or other wise of the reports and their influence on the voters. If the influence is adverse and would materially affect the result, necessary action should be taken.

Even under the general law, for giving a false affidavits showing receipts or expenditure of less amounts, such candidates and journalists could be prosecuted. Question is the lack of will and courage to punish the widespread political criminals joining hands with media persons.

Recommendations:

The Duty of ECI:

The Election Commission of India should act stringently against those committing electoral corrupt practices and crimes at two stages:

    1. During the election process the ECI is immune from Judicial, Legislative and Executive interference. It assumes all the three positions. It has to prevent over spending, spread of falsity and undue influence.
    2. After the polls are over, the ECI should continue to direct the officers through the Governments to prosecute the offenders before the courts of law, though none filed the election petitions.

It is the responsibility of the Election Commission of India to curb this undue influence perpetuated by the Political Parties and candidates through the Media because it is their constitutional obligation to facilitate free and fair poll. These are crimes of false reporting, undue influence, and corrupt practice, poll crimes for which both journalists and the politicians must be prosecuted.

The Duty of PCI

While the ECI perform the duty to curb and punish electoral crimes and corrupt practices, the PCI (Press Council of India) has to keep on admonishing unethical media during elections. The PCI should constitute a special task force in each district during elections, to receive complaints, make preliminary study and report to Election Commission of India, to take action.

The Press Council of India could also censure the persons, whether from media or politics, involved in this murky deal and release press notes immediately besides putting all that information on websites. Having tasted huge amounts of money, the media might not heed to professional and ethical advises or felt ashamed for censure. The wide publicity of that censure might bring a feeling of shame, at least. However the prosecution would be more effective.

There is no need to amend the law or Constitution; it is enough if the IPC and RP Act are effectively used to prosecute. However, the IPC provisions need to be amended to enhance punishment and amount of fine for the electoral offences and corrupt practices. Once the complaint is received and press clipping show the prima facie liability, the law should presume that media and contestant has indulged in ‘paid news’ and the burden should shift on to accused to prove their innocence. If the content of news item is explicit with exaggeration or ascertainment of victory the presumption of liability should arise.

Besides punishing the crime of undue influence through paid news, it is important to protect the sanctity and fairness of elections by preventing undue influences, for which the election conducting machinery should be alert and keep open its eyes and ears to receive the complaints from civil society and prompt in acting effectively to ensure free elections through checking mind-rigging by politicians through media. Press Council of India also has to exercise all its power by building strong opinion among the people to raise the protest against the syndrome of paid news.