“the basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers & be capable of reading them.”

-Thomas Jefferson

INTRODUCTION

The media in India has an extensive history, even lengthier than the history of democracy in India. Traversing from the expatriate past in the latter half of the 18th century, to the present as ‘the largest operational democracy’ in the 21st century. A more than two-century-old media began its momentous journey as a private enterprise maintained by an Englishman during British East India Company’s rule. It progressively, grew and developed, as both private and public institution, publishing news and opinions in the notice of then colonial subjects to the free people of democratic India. First, in the family of the mass media, the print media remained primarily in the hands of private individuals or groups and the broadcast and telecast media which came into being very late have had its origin during the British raj and in independent India. The demand to end the monopoly of government over broadcast and telecast media became a reality only when the paradigm change arrived in the government economic policy in the early 1990s. The policy of liberalisation inaugurated a new chapter in the history of the mass media in India. Several path-breaking changes took place in the structures and functioning of government-controlled media, as well as the private sector owned media, namely, termination of the monopoly of government over electronic media, comparative independence to government-controlled electronic media, growing privatisation in the area of electronic media, competition among media houses and organisations, commercialisation of the media, shifting the attention of matters from common man to middle and higher classes, and from rural India to urban and cosmopolitan India.

CONSTITUTIONAL STATUS OF PRESS/MEDIA IN INDIA

The question aroused before the constitutional makers of India, whether to have a separate provision for press like in the Constitution of America or to add the freedom of the press in right to speech and expression as in the Constitution of England.

Dr B.R. Ambedkar, the Chairman of the Drafting committee strongly reasoned that the press is simply an alternate mode of describing a citizen or an individual. The media has no greater privileges which are not to be given or which are not to be implemented by the voter in his distinct capacity. The supervisory of the press or the editor are all citizens and therefore when they select to write in a newspaper they are just exercising their right of freedom of speech and expression and in my decision then no distinct mention is necessary of the freedom of the press at all[1]. Therefore in the Indian constitution, the right to press was inserted in freedom of speech and expression i.e., Article 19(1)(a). A free press is the need for democracy and is more significant for the gigantic democratic country like India. In India in the absence of any exact article in the constitution for the free press, it was the judiciary who endorsed and protected the independence of the press.

ROLE OF INDIAN JUDICIARY IN PROTECTING THE INDEPENDENCE OF PRESS/MEDIA

Hon’ble Supreme Court in Romesh Thapar V. State of Madras[2]  has confirmed that right to circulation is as vital as the right to publication. In Sakal News Papers v. Union of India[3] incidental efforts were made by the Government to control the freedom, by passing the Newspaper (Price and Pages) Act 1956, which approved the government to control the space for advertisement, which was, later on,, struck down by judiciary as it would have a straight bearing on circulation.

ROLE OF JUDICIARY IN RESTRICTING FREEDOM OF PRESS/MEDIA

In India, the judiciary safeguarded the rights of the press as well as controlled it in the interest of justice. The Hon’ble Supreme Court in State of Bihar v. Shailabala Devi[4]  stated that speeches and expression on the part of an individual which aggravate or enhance the unruly crimes such as murder, etc. will weaken the security of the nation. The court in the case of Dr D.C. Saxena v. Hon’ble the Chief Justice of India[5] alleged if safeguarding of democracy is the substance for free speech, society equally is certified to regulate freedom of speech or expression through democratic action. The cause is obvious, e.g., that society assents free speech and expression and also puts limitations on the right of the majority.

ROLE AND IMPORTANCE OF MEDIA

Anything without a mouth is useless, similarly, a democracy without an independent media is obsolete. Media educates, entertains and spreads awareness among the people by disseminating the information. If media is evacuated from this juncture the system will suddenly collapse down without any rest. Media is the most important tool in the hands of democracy for its smooth functioning. It works as a bridge between the people and government and if the bridge collapses there will be no communication between the citizen and its government. With the help of different print and electronic media, different political parties are getting connected with nooks and corners of the state and county within no time. At the time of the election the ideas and agendas of different political parties can be shared with the citizens and also accurate responses can be gathered by these political parties by utilising these different form of mass media. The projects and programs of different ministries of the government can be shared with its citizen in a flash. The most important role of media is to spread awareness and to provide citizens knowledge about their representatives. Media and politics are the heart and soul of the democracy and without one, the other is of no use. Proper use of media with reference to politics can strengthen democracy and the well-being of our country.

Many acts have been enacted in order to regulate media especially regarding the transmission of data, broadcasting rights, etc. and avoid misuse of this powerful tool. These acts, rules, regulations, etc. not only regulate the print media but also the electronic media. Special rules are also framed by the Election Commission of India to curb misuse of media by different political parties. Some major rules relating to political advertisements and paid news in print and electronic media are discussed below.

CERTIFICATION OF POLITICAL ADVERTISEMENTS & PAID NEWS

Gist of Instructions

1. Certification of Political Advertisements

·         The Hon’ble Supreme Court’s Order dated 13th April 2004 on certification of political advertisements on TV Channel and Cable Network.

(a) The Supreme Court of India in Ministry of Information and Broadcasting Vs M/s Gemini TV Pvt. Ltd. and others[6] passed an order on 13th April 2004, that all the political advertisements proposed to be aired on TV Channels and Cable Networks by any registered political party/any group or organization/ association/individual shall be pre certified by the designated certification committee. Consequent upon the Supreme Court judgment, the Election Commission issued an order to the CEOs of all the States/UTs to constitute such committees.

·         Applicability of provision of pre-certification of political advertisements

The order of the Supreme Court of India dated 13th April 2004 provides in specific and unambiguous terms that its directions would be applicable in the whole territory of India at all times and not restricted only during the period commencing from the date of announcement of the election and till the completion of the election process.

·         Certification of a political advertisement on TV Channels & cable TV Network – Extension to Radio and Cinema Halls.

 Election Commission in consequent upon the amendment in Code for Commercial advertisements on radio, has issued an order that the Committees set to scrutinize political advertisements on TV channels/Cable Networks, will also deal with the political advertisements in cinema halls and on Radio including the private FM Channels

·         Audio-visual displays of political advertisement at a public place

Audio-visual displays of political advertisement/campaign material in public places should require certification under the existing orders of the Commission by the designated committee.

·         Use of bulk text messages / audio messages in political campaigning

Use of bulk text messages / audio messages in political campaigning should also require certification under the existing orders of the Commission to be done by the designated committee

·         Direction by Commission to constitute State level & District level Media Certification and Monitoring Committees (MCMC)

The Commission has directed CEOs of all the States/UTs to constitute MCMC at state and district level, to monitor paid news instances in media. RO of Parliamentary Constituency may co-opt as many members to assist him in the certification of political advertisements so as to have a wider opinion and equal representation from all the districts in the matter of certification.

·         Application for certification of Political advertisement by State unit of any National/State party and certification of political advertisement in multiple languages and the regional language of any National Party/State Party having headquarter in Delhi.

(a) As per the above-referred order dated 15th April 2004, the committee set up in the office of the Chief Electoral Officer, Delhi is to deal with applications of all political parties having headquarters in Delhi. The Commission wide its letter dated 18th March 2009, clarified that the applications from State units of the National parties may be submitted to the committee in the States concerned. However, the applications from the central office of the National and State parties with headquarters in Delhi will continue to be scrutinized by the committee in Delhi.

(b) If the Central Office of any of the National Parties or the State Parties with headquarters in Delhi seeks certification of the same advertisement in multiple languages (Hindi/English and in regional languages), the advertisement material in each of the languages along with certified transcripts should be submitted to the committee in the office of the CEO, Delhi.

(c) In the cases where registered political parties/ group/ organization/ association, do not have their headquarter in NCT of Delhi but wish to telecast/broadcast their advertisement in Delhi, certification of advertisement should be deliberated by the MCMC in the State in which the party is standing for election.

(d) State parties who also wish to contest elections outside that state where their headquarter is located, they may seek certification of such advertisement from the Committee in the office of CEO Delhi (Page No. 62) It is further clarified that Chief Electoral Officers of States/ UTs may accept and pre-certify the advertisements from any political parties irrespective of the location of their headquarter, provided they have the language competency to do so.

·         Timeline for delivering the decision on the applications of pre-certification of political advertisements.

The Commission vide its letter dated 10th March 2016 clarified that the State and District MCMC shall deliver the decision on the applications of pre-certification of political advertisements within two days of receipt of application.

·         Inclusion of a social media expert in the MCMC

The Commission vide its letter dated 25th February, 2019 has instructed for the inclusion of an intermediary expert (intermediary as defined in section 2(w) of IT Act 2000)/ social media expert in Media Certification and Monitoring Committee at the state and district level.

·      Pre-certification of Political Advertisements in Print Media on the poll day and one day prior to poll day

During the General Election to Lok Sabha and State Legislative Assemblies, 2019 the Commission, in exercise of its powers under Article 324 of the Constitution and all other powers enabling it in this behalf, on 6th April 2019 has directed that no political advertisements by Political Party or Candidate or any other Organization or Person shall be published in the print media on the poll day and one day prior to the poll day in all the phases, without pre-certification from the MCMC Committee.

This decision was first taken during Bihar Assembly Elections 2015 to ensure that instances of advertisements of offending and misleading nature published in print media during the last stage of an election do not vitiate the election process

2. Paid News

The Election Commission has accepted the definition given by Press Council of India with regards to paid news which states that any news or analysis appearing in any media either Print or Electronic acquired for a price in cash or kind as consideration.

·         Commission’s proposal for the amendment in Representation of the People Act, 1951 to make Paid News an electoral offence.

The Commission vide its letter dated 3rd February 2019 on two occasions has proposed to the Ministry of Law & Justice, Govt. of India for an amendment in the Representation of the People Act, 1951, to provide the rein that publishing and abetting the publishing of paid news in order to further the prospect of election of any candidate or for prejudicially affecting the prospect of election of any candidate is made an electoral offence.

·         Declaration of name and address of publisher and printer on any printed pamphlet, handbills and other documents

It has been clarified that legal provisions under Sec. 127A of the R. P. Act, 1951 makes it obligatory for the publisher of an election advertisement, pamphlet, etc. to print the name and address of the editor, publisher and printer and failure to do so attracts penalty of imprisonment. Section 171 H of the Indian Penal Code prohibits incurring of expenditure on an advertisement without the authority of the contesting candidate including the declared or specified release as advertisement introduced in the newspaper, etc., and release of the amount paid for such advertisements.

·         Notional expenditure of paid news will be included in the candidate’s election expenses account in accordance with the standard rate cards of media houses.

In order to bring uniformity in dealing with paid news and advertisements on TV/cable TV network owned by political parties or their functionaries/ office bearers, the Commission has directed the CEOs that six months before the due date of expiry of Lok Sabha or the State/UT Legislative Assembly, as the case may be, a list of television channels/radio channels/ newspapers, broadcasting/ circulating in the State/UT and their standard rate cards shall be obtained by the CEOs and forwarded to the Commission.

·         Committee at Election Commission of India level to examine paid news

A Committee at ECI level should be constituted to examine references received from State level MCMC and to recommend and examine references directly received in the Commission

·         Commission’s complete guidelines on paid news – 27.08.2012

The Commission has issued complete guidelines to the CEOs of all the States/UTs which states that the District level Committee will scrutinize all newspapers and electronic media in the District, in order to locate political advertisement under the shadow of news coverage. In case of Paid News noticed by the committee, the candidate will be served due notice which he has to reply within 48 hours of serving of notice.

·         Paid News reporting formats for CEOs

The Commission has developed two formats for the Chief Electoral Officers, to inform the paid news cases to the Commission. CEOs have to submit a weekly report in Format 1 from the date of filing nominations and a final detailed report in Format 2 of all the confirmed cases of paid news.

·         Time period for determining paid news cases

With reference to Section 77(1) of Representation of the People Act, 1951 it is clarified that paid news cases may be taken into account from the date of filing of nomination by the candidate.

·           Guidelines – candidates’ advertisements on Newspaper/ TV/ Cable channels/Radio owned by political parties

New provision has been introduced in Election Expenditure Statement (Schedule 4A of Annexure-15 of Compendium of Instruction on Election Expenditure Monitoring) of the candidates for including the expenses on candidates’ advertisements on press and media owned by political parties or their functionaries.

The Media Certification and Monitoring Committee (MCMC) shall keep a close watch on the contents telecast on such channels to identify contents of the nature mentioned above, and after following all due procedures, the notional expenses as per standard rate cards of the channel shall be added in the election expenditure account of the candidate appropriately, even if, they actually do not pay any amount to channel/newspaper.

·         Publicizing the confirmed cases of paid news on CEO’s website as a measure to check its spread during elections.

Election Commission vide its letter dated 4th June 2019 reiterated to all the Chief Electoral Officers to publish the names of candidates (and not the media house) against whom the cases of Paid News have been established on their websites

·         Press Council of India (PCI) and News Broadcasters Association (NBA) to take action against print media and electronic media involved in paid news

In the established cases of Paid News names of involved print media and electronic media are forwarded to Press Council of India (PCI) and News Broadcasters Association (NBA) respectively for necessary action.

CONCLUSION

The practice of paid news or surrogate political advertising is not limited to election campaigns. Though it is not something new for the country, the enormity of its spread and the manner in which it is being institutionalized is causing much concern among journalists and the professional bodies, not least the political parties and the government. Nevertheless, guidelines can be worked out to increase transparency and improve monitoring of the electoral process and general political issues.

There is a need to have uniform regulations and guidelines for both public and private as well as print and electronic media to ensure a level playing field for all parties and candidates during campaigning. A single initiative or measure cannot improve the situation. A combination of efforts is required to install a system of “checks and balances”. This includes self-regulation by the media itself and guidelines from professional bodies such as academics, independent researchers, civil society groups and regulatory agencies like the Press Council of India, the Information Commission, the Election Commission of India and the Telecom Regulatory Authority of India (TRAI).

Bibliography

·         The Jefferson Monticello, Jefferson Quotes, Paris, January 16, 1787, http://tjrs.monticello.org/letter/1289 (last visited on 14.07.2020)

·         HussainMdBajlun Noor.2018, the Role and Importance of Media in Indian Politics. Int J Recent Sci Res. 9(1), pp. 23451-23454. DOI: http://dx.doi.org/10.24327/ijrsr.2018.0901.1472

·         Sadashivam, T. (2019). Role of Social Media in Indian General Election of 2019.

·         Election Commission of India, www.eci.gov.in (last visited on 14.07.2020)

·         Election Commission of India, Compendium of Instructions on Media Related Matters, January 2020, Document 14 – Edition 3

·         Shodhganga, Chapter 1: Media in India – Raj to Swaraj http://shodhganga.inflibnet.ac.in/bitstream/10603/27658/9/09_chapter%201.pdf (last visited 14.07.2020)

·         Asia-Pacific Institute of Broadcasting Development, Elections in India: The changing interface between media and politics, https://www.aibd.org.my/node/1219 (last visited on 14.07.2020)