The Election Commission of India (ECI) has issued guidelines (PDF) regarding media coverage under section 126 of Representation of People Act, 1951. As per a press release issued by the ECI, Section 126 of the Representation of the People, 1951, prohibits displaying any election matter by means, inter alia, of television or similar apparatus, during the period of 48 hours before the hour fixed for conclusion of poll in a constituency.
The expression similar apparatus includes websites, blogs, social media platforms, etc as well. This makes the enforcement of this prohibition very difficult as websites and social media platforms may not always be located within Indian jurisdictions.
Realising the practical difficulties to regulate foreign websites and social media platforms, it has been proposed that Indian social media websites must be started. It is also been considered to force the technology companies to establish their servers in India so that Indian laws can be enforced more effectively.
Foreign companies like Google, Facebook, etc are not complying with Indian laws and legal requests for information. They are taking shelter behind the conflict of laws in Indian cyberspace and are avoiding compliances with Indian laws. In these circumstances enforcement of the provisions of Section 126 of the Representation of the People, 1951 would be really challenging.
Section 126 (1) (b) provides that no person shall display to the public any election matter by means of cinematograph, television or other similar apparatus in any polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in the polling area.
Section 126 (2) provides that any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
Section 126 (3) provides that for the purposes if Section 126, the expression “election mater” means any matter intended or calculated to influence or affect the result of an election.
Both foreign companies and Indian telecom and technology companies are required to follow cyber law due diligence in India. They are also “Internet Intermediary” under the provisions of Information Technology Act, 2000. If these companies contravene Indian laws, including section 126 of the RP Act, 1951, they can be prosecuted in India.
Similarly, any individual who assists in the contravention of section 126 shall also be liable to be punished under section 126. Political parties of India and their online supporters must keep this in mind while doing campaign on websites and social media websites.
During elections, there are sometimes allegations of violation of the provisions of the Section 126 of the RP Act, 1951 by TV channels in the telecast of their panel discussions/debates and other news and current affairs programmes. ECI has also invited the attention of all stakeholders to Section 126A of the R.P. Act 1951, which prohibits conduct of Exit poll and dissemination of their results during the period mentioned therein, in the hour fixed for commencement of polls in the first phase and half hour after the time fixed for close of poll for the last phase in all the States.
ECI once again reiterated that the TV/Radio channels and cable networks should ensure that the contents of the programme telecast/broadcast/displayed by them during the period of 48 hours referred to in Section 126 do not contain any material, including views/appeals by panelists/participants that may be construed as promoting/prejudicing the prospect of any particular party or candidate(s) or influencing/affecting the result of the election.
However, during the period not covered by Section 126 or Section 126A, concerned TV/Radio/Cable/FM channels are free to approach the state/district/local authorities for necessary permission for conducting any broadcast related events which must also conform to the provisions of the model code of conduct and the programme code laid down by the Ministry of Information and Broadcasting under the Cable Network (Regulation) Act with regard to decency, maintenance of communal harmony, etc. They are also required to stay within the provisions of Commission’s guidelines dated 27th August, 2012 regarding paid news and related matters. Concerned Chief Electoral Officer/District Election Officer will take into account all relevant aspects including the law and order situation while extending such permission.
Attention of all media has also been drawn to the following guidelines issued by Press Council of India to follow for observance during the election:
(i) It will be the duty of the Press to give objective reports about elections and the candidates. The newspapers are not expected to indulge in unhealthy election campaigns, exaggerated reports about any candidate/party or incident during the elections. In practice, two or three closely contesting candidates attract all the media attention. While reporting on the actual campaign, a newspaper may not leave out any important point raised by a candidate and make an attack on his or her opponent.
(ii) Election campaign along communal or caste lines is banned under the election rules. Hence, the Press should eschew reports, which tend to promote feelings of enmity or hatred between people on the ground of religion, race, caste, community or language.
(iii) The Press should refrain from publishing false or critical statements in regard to the personal character and conduct of any candidate or in relation to the candidature or withdrawal of any candidate or his candidature, to prejudice the prospects of that candidate in the elections. The Press shall not publish unverified allegations against any candidate/party.
(iv) The Press shall not accept any kind of inducement, financial or otherwise, to project a candidate/party. It shall not accept hospitality or other facilities offered to them by or on behalf of any candidate/party.
(v) The Press is not expected to indulge in canvassing of a particular candidate/party. If it does, it shall allow the right of reply to the other candidate/party.
(vi) The Press shall not accept/publish any advertisement at the cost of public exchequer regarding achievements of a party/government in power.
(vii) The Press shall observe all the directions/orders/instructions of the Election Commission/Returning Officers or Chief Electoral Officer issued from time to time.
The above guidelines should be duly observed for compliance by all the concerned media, including social media. There are great chances that these guidelines would be violated by various political parties and their supporters especially through online mechanisms and social media websites. Only time would tell how far ECI would be able to meet the objectives mentioned in this press release.