[dropcap]T[/dropcap]HE Section 126 of the Representation of People Act, 1951 (RPA) imposes a 48-hour ban preceding polling — on public meetings and processions in connection with the election, the display or propagation in a polling area of "any election matter" — which is intended or calculated to affect or influence the result of an election. The provision embodies a right to "election silence" for voters, which is under attack due to the use of social media for election campaigning and the technological challenges in enforcing this period of election silence. This article examines the regulatory challenges faced by the Election Commission of India (ECI) in its implementation.
Even though polling has now begun in multiple phases, voters remain submerged under a barrage of information virtually indistinguishable from propaganda disseminated by surrogate ads. All modes of dissemination ranging from social media, radio, television, pamphlets to ads on billboards and bus stops have been utilised to target, persuade and influence voters" opinions. In this context, a 48-hour period of quiet contemplation, free from election advertising to properly evaluate their options and make a well-reasoned and informed choice in the polls acquires renewed importance. Although some have argued for the removal of the election silence period altogether, we believe that the 48-hour period under S.126 is essential to the conduct of free and fair elections. A violation of the voters right to silence in close proximity to polling could vitiate the entire election process.
As we examine these issues in detail, we find that the challenges in enforcing restrictions on political speech are symptomatic of the larger problem of inadequate reporting and oversight of election expenditures incurred by political parties, candidates and their "supporters" or "well-wishers". We argue that it should not be incumbent upon the voters to "dodge" propaganda on social media platforms by unsubscribing for two days. Article 324 entrusts the ECI with the responsibility of creating and maintaining an environment conducive to the conduct of free and fair elections; this includes the power to give appropriate directions to relevant stakeholders. The onus thus, falls on the ECI to be proactive in penalising violations that interfere with the meaningful exercise of this right.
It is a settled point in law that the right to speech implies, the right to silence. It implies freedom, not to listen, and not to be forced to listen. This right enshrined in S. 126 has led the ECI to direct that the prohibitions under S. 126 apply mutatis mutandis to election matters, including advertisements, circulated on social media platforms (SMPs). However, for advertisements in the print media in the same time period, the ECI has directed that such ads may be published only if the contents of political advertisements are pre-certified by the Media Certification and Monitoring Committees (MCMC) at the state/district level, as the case may be. In this manner, the MCMC pre-certification requirements are the enforcement mechanisms employed by the ECI to prevent violations of S.126. Presumably, these requirements should apply to electronic and digital media as well to prevent the dissemination of "election matter" disguised as advertisements. Additionally, where such ads appear without obtaining such a pre-certification, the ECI can easily identify clear cases of violation.
However, despite these ECI directions that recognise that such ads at the eleventh hour could vitiate the entire election process, and recommendations of the Sinha Committee, S. 126 has not yet been amended to combat the mushrooming of surrogate election campaigns on SMPs. Notably, the ECI has clarified that these restrictions do not apply to posts by individual users, as they cannot be treated as advertisements. However, it is relevant to point out that the ECI's directions and clarifications seek to fill the lacunae in the law on an ad hoc basis. As on date, there is no Parliamentary legislation that makes S. 126 applicable to SMPs.
With the objective of preserving the period of election silence, the application of S.126 to SMPs raises 3 distinct issues – (1) how to distinguish between social media influencers(SMIs) posting individual opinions and SMIs acting as surrogate advertisers (2) the definition of "election matter" and the scope of what is prohibited (3) how to meaningfully implement this ban in tandem with multiphasic elections without simultaneously hindering the right to political speech for voter in non-polling constituencies.
The phenomenon of SMIs blurs the line between individual users and what the ECI considers surrogate advertisers. In our previous post, we had pointed out that S.126 in its current form could be misused to target and silence "undesirable" political posts by SMIs.
Surrogate posts by SMIs in lieu of election advertisement escape the scrutiny of the ECI as they are not covered under the mandatory MCMC pre-certification requirements. These advertisements, masquerading as personal opinions are not adequately dealt with by any other provision, and thus should be brought under the umbrella of S.126 in tandem with more stringent reporting requirements for political parties and candidates regarding election expenditure. The ECI Compendium treats SMIs as just another individual user, and erroneously assumes that SMIs post content on their initiative. But that is not the case. The rise of the SMI phenomenon is premised on leveraging the influencer's social capital in return for promotion of material akin to an advertisement. Where an SMI does not disclose whether a post is paid or not, there is little recourse for the ECI other than relying on community guidelines of SMPs that require distinguishing between paid and unpaid content.
The use of SMIs in election campaigns on social media is analogous to the use of "star campaigners" in election rallies. Star campaigners are by definition candidates or members of political parties or at the very least, reported as having links with the party. SMIs can be said to be their virtual equivalent, whereby both phenomena use the popularity of one individual to draw large gatherings and influence the electorate in favour of a local candidate. ECI rules allow for this practice and lay down special requirements for the apportionment and reporting of the expenditure on star campaigners.
Any post by the official handles of parties and candidates in this period would be a clear violation. The question that remains is whether the ECI framework can silence the chatter of surrogate ads and SMIs on SMPs to enforce election silence in letter and spirit. Owing to their unique characteristics and widespread influence, SMIs should be treated as a distinct category that includes influential "well-wishers" and "supporters" of political parties and/or candidates on SMPs.
Election matter' under S.126(3) includes any content intended or calculated to influence or affect the result of an election. The provision does not depend upon the description of the person posting the content but turns upon their intent in disseminating election related content in polling areas. This intent may be inferred from context, i.e. the number of followers or subscribers that can be attributed to the SMI, party or candidate. Knowledge of the likelihood that by virtue of their reach or social standing, they would illegally influence public opinion is indicative of the required intent but not sufficient. Surrogate ads and political posts by SMIs can both break election silence. However, the former escapes scrutiny while the latter is left unduly restricted, even when SMIs derive no pecuniary or other benefit from posting political content.
It is only SMI's who have received pecuniary benefits or have been sponsored to post political content by third-parties that should be silenced under S.126. The issue of SMIs writing sponsored content disguised as personal opinions has been marred by controversy. This raises the broader question of clandestine funding of such posts, as well as the financial and political quid pro quo between surrogate advertisers and political parties/candidates. On the issue of expenses incurred on surrogate advertisements, the ECI identifies two categories of election expenses– legal and illegal. In doing so, it seems to have resigned itself to the reality that election campaigns do not and will not accurately report this category of expenses, if at all.
The "intent to influence" on the part of the person breaking election silence under S.126, should be inferred from a combination of factors. Due consideration and appropriate weightage should be given to the person's social standing, political connections and reach, circulation of the election matter in question, its likelihood of influencing election outcomes, temporal proximity to the elections and pecuniary remuneration or any other material benefit derived from the exertion of such influence.
Difficulties in enforcing silence on SMPs are further compounded by the multiphasic nature of the elections. This links into the overarching difficulty in the territorial jurisdiction over the internet as a whole, and with phased elections as another factor, it would be nearly impossible to enforce the 48-hour election silence in isolated parts of the country.
In the case of social media, a post that goes live from the account of a person situated in Mumbai could conceivably reach voters in Mussoorie to influence opinions and election outcomes in unprecedented ways. With the use of cyber cells, and the strategic use of keywords, it is possible to create artificial trends and to manufacture virality for individual posts to influence election outcomes, all this while, escaping ECI and MCMC scrutiny.
However, the extension of the geographical scope of the ban beyond polling areas would be unduly restrictive of the rights of voters in other constituencies. At the same time, to remove the 48-hour period of election altogether would erode all voters' right to silence that is crucial for the right to vote to be exercised meaningfully. Yet another option, although a procedural solution to a substantive problem, is to do away with multiphasic elections altogether or reduce the number of phases in which polling is conducted. This would avoid collaterally restricting free speech not prohibited under S. 126. The administrative costs and inconvenience of these procedural measures could be offset by the ECI adopting a more proactive role in taking suo moto cognizance of S. 126 violations by political parties, candidates and surrogate campaigns on SMPs and more importantly, imposing higher fines proportionate to the massive expenditures incurred on election campaigns, surrogate or otherwise.
A recent study by the Oxford Internet Institute indicates that India is among 48 countries most vulnerable to the manipulation of public opinion over social media platforms which emerge as a critical threat to public life. In the face of such obvious threats to the conduct of free and fair elections, the ECI, in considering recommendations of the Sinha Committee to amend S.126, must uphold and enforce the voters' right to election silence on SMPs. This right would be reduced to a mere aspiration if the ECI fails to draw sharp lines to distinguish paid and unpaid content posted by surrogates in lieu of political parties and candidates.