Power-hungry EC strikes again
Pix: One of the BJP advertisments issued before the Bihar elections.
The Election Commission of India has recently made yet another request to the government to be given the power, via legislation, to ban political advertisements in newspapers for a period of 48 hours before the day of polling.
The EC has been making this demand since 2012 and has been bolstered significantly by the outrage against the several ‘nudge and wink’ advertisements published by the BJP prior to the Bihar elections on reservation quotas and cows. After the initial controversy against those print advertisements, the EC had ordered political parties to submit such advertisements to it for prior vetting before publication and apparently all ads were vetted by the EC prior to the elections in Assam and Bengal.
Both the ban on the print advertisements and the pre-publication censorship that took place during the Bihar elections, are on shaky legal grounds. Not only does the EC prima facie lack the statutory power to impose such bans, it is also likely that such a power will be judged as an unreasonable restriction on the fundamental right to free speech that is guaranteed by the Constitution. The EC probably realises its limitations and is therefore seeking an amendment to the law.
The EC’s propensity to seek powers to curb political speech is nothing new. It has been pushing for such restrictions for the last couple of decades and has slowly but surely expanded the ambit of its power with the help of the Supreme Court. While the state imposing restrictions on free speech is nothing new, the trouble with the EC’s approach is that it prefers to either completely ban speech or impose prior restraints like pre-broadcast censorship.
If these restrictions can be justified in the context of political speech, which is the most important category of free speech, what is to stop the state from extending a similar form of censorship to all speech?
If civil society supports the EC’s demand for such draconian censorship powers, how are they going to justify their protests against similar censorship with respect to other categories of free speech such movies and literature? Or is it that our liberal intellectuals are generally hypocritical when it comes to free speech and they view Article 19(1)(a) as a means to an end, rather than an end in itself.
In order to explain these issues, especially the context of the EC’s latest demand, it is necessary to explain some of these earlier disputes over its censorship powers.
The opinion/exit poll controversy
For the last two decades, there has been a raging controversy over the publication of opinion polls and exit polls. There has been considerable debate on whether such polls are accurate and whether or not they unduly influence voters. In 1998, the EC issued an order which banned the publication of opinion polls and exit polls from the first day of the election till half an hour after the closing of the polls. The constitutionality of those guidelines was challenged before the Supreme Court by the Hindu, Frontline and others.
There were two issues at dispute before the Supreme Court in this case. The first was whether the EC could issues such guidelines under Article 324 of the Constitution (which gives the EC power to regulate elections) and the second was whether such guidelines would violate the fundamental right to free speech. As arguments proceeded before a Constitution Bench of the Supreme Court and it became clear that the Court was going to rule against the EC on the grounds that it lacked the powers to issue such guidelines, the EC pre-empted a judgment by withdrawing the guidelines.
The Frontline piece available here explains the tension at the time between the EC and the media. The Frontline article commented “Although the Commission has since indicated that it intends to keep the issue alive, there is little question that it has in overstretching itself, undermined even the residual sense of respect that sections of the media had shown towards its directives.”
In 2004, when the government was contemplating an ordinance to ban opinion/exit polls, an opinion was sought from the Attorney General on the constitutionality of such a measure. The then Attorney General (AG) Soli Sorabjee was of the firm opinion that any attempt to prohibit the publication of such polls would be unconstitutional since it would be in violation of the fundamental right to free speech under Article 19(1)(a) of the Constitution of India.
Nevertheless in 2009, Parliament amended the Representation of People’s Act, 1951 to insert a new S. 126A which gives the EC the powers to prohibit opinion/exit polls for the limited period of the elections. The constitutionality of this provision is yet to be tested before a constitutional court.
Restrictions in TV and radio
In 2004, the EC decided to enforce Rule 7(3) of the Cable Television Network (Regulations) Rules, 1994 which basically prohibits political advertisements. The provision reads as follows: “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.”
The constitutionality of the rule was challenged before the Andhra Pradesh High Court by Gemini TV Pvt. Ltd. and the High Court actually stayed the rule. The Ministry of Information & Broadcasting then appealed the order to the Supreme Court.
Instead of adjudicating the appeal, the Supreme Court, incredibly, invoked its inherent powers under Article 142 of the Constitution, to authorise a pre-broadcast censorship regime for political advertisements. The court’s order stated:
This order is being issued in exercise of the powers under Article 142 of the Constitution of India and it shall bind all the political parties, candidates, persons, group of persons or Trusts who propose to insert the advertisement in the electronic media, including cable network and/or television channels as well as cable operators.
In a detailed order, the Supreme Court created a system of committees and authorised the EC to administer the system and made the decisions of the committee binding on political parties. The EC guidelines based on the Supreme Court’s orders can be accessed here. It is important to understand that the EC has interpreted the SC’s order to mean that it has powers to censor political advertisements “at all times”and “not restricted only during the period commencing from the date of announcement of the election schedule by the Commission and till the completion of election process.”
The EC’s circular highlighting this aspect of its interpretation can be accessed here. As a result the EC basically has the power to censor political speech broadcast on the electronic media even when elections are not taking place. Quite an incredible power.
Over time, the Commission gradually expanded these powers to include a pre-broadcast censorship regime over political advertisements that were broadcast on radio and subsequently in 2015 expanded this to cover even advertisements through bulk SMS. The relevant guidelines can be accessed here and here.
Not legal and definitely not desirable
There are two main issues that need to be raised at this stage.
The first is whether the Supreme Court was correct to use its powers under Article 142 to manufacture and impose such an over-arching censorship regime for political advertisements in the electronic media despite there being no legislative mandate for it? On this, it is quite certain that the Supreme Court overstepped its boundaries; it had no business manufacturing a censorship regime without a legislative mandate
The second is whether such prior restraints on free speech are legitimate under Indian law? This is more complicated. The Supreme Court has upheld a prior restraint censorship scheme for cinema in the case of K.A. Abbas v. Union of India despite the fact that the print media was excluded from a prior restraint regime. At the time, the Supreme Court justified this demand on the grounds that the nature of cinema was different from print media.
The decision has been harshly criticised by several scholars. Gautam Bhatia, free speech scholar and lawyer, describes the judgment as “a complete defeat for the cause of freedom of expression under the Constitution. It gave a constitutional imprimatur to the entire regime of film censorship in India, legitimized prior restraint on entirely spurious grounds and upheld extraordinarily vague and ideologically motivated restrictions.”
However, when it comes to print media, the Supreme Court hasn’t been that supportive of prior restraints. In the Auto-Shankar case, the Court was of the opinion that ‘prior restraints’ were not permissible in law. However, later in the Sahara v. SEBI case, the Supreme Court in a confusing judgment, appears to open the door for prior restraints or postponement of speech in certain cases, to protect the right of an accused to a fair trial.
No print ads 48 hours prior to an election
The EC’s latest demand to ban all print advertisements for a period of 48 hours prior to the elections is highly problematic from both a policy and legal perspective.
The first problem is that the EC, as usual, is asking for disproportionate powers to deal with a problem which can be dealt with adequately under existing law. As explained earlier, the immediate justification for this demand was the publication of two allegedly offensive advertisements during the Bihar elections.
If those advertisements were in fact communal and seeking to create enmity between two social groups, the EC still has the option to prosecute the political party which has published such advertisements for offences under the law. Why then should the EC seek such overwhelming powers to ban all political advertisements just because of two offensive advertisements?
Some may argue that the restriction is for a mere 48 hours but if such a ban can be justified for 48 hours, what is to stop the EC from pushing that envelope to way beyond 48 hours? The history of the EC’s demands shows how it keeps requesting more and more powers to curb political speech and opinion polls. It is unlikely to stop with just a ban for just 48 hours.
From a legal perspective, it is unlikely that a ban for even 48 hours is tenable. The state first has to justify the need for prior restraints and then it has to justify the prohibition on the grounds mentioned in Article 19(2). These restrictions are as follows: “In the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.
I don’t see how the state can argue that such restrictions are reasonable in light of Article 19(2). However, given the Supreme Court’s approach to these cases, it is difficult to predict how it would rule.
In any case, Parliament must resist the urge to hand over powers to the EC to censor political speech.