Electoral Offences and Corrupt practices: Mind rigging by media.

ABSTRACT

Advertisement is being packed as ‘news’ and space that is sold. The General Elections in some
states such as Andhra Pradesh and Maharastra saw a disturbing trend of media space being sold
for money without being accounted for. The price paid for was not for an advertisement but
‘news’, which gives a very favourable and hopeful report about the contesting candidate. The
‘favourable’ report of rousing reception, surging crowds and increasing support for the candidate
as part of ‘package deal’ is what lure each contestant but that is what misleads the voter which
Media is not supposed to do. Started with Andhra Pradesh Elections in 2009, the syndrome of
paid news spread and institutionalised in Maharastra in 2010 and attracted the attention of the
Press Council of India which immediately took cognizance of the unethical practice and
appointed a committee to examine the possible measures to prevent it. This research project
analyses the new practice, its ethical problems and the legal provisions which could be used to
curb it besides seeking active participation by civil society in exposing falling media also.

Research Methodology

The Methodology used in this research project is Doctrinal in nature since it is largely based on
secondary & electronic sources of data and also since there is no field work involved while
producing this research. Due to paucity of time no empirical research was possible to conduct.

Statement of Problem

This project report analyses the new practice in Media, its ethical problems and the legal
provisions which could be used to curb it besides seeking active participation by civil society in
exposing falling media also.

Objectives of the study

This study is basically based on the following objectives:

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 Electoral Offences and Corrupt practices: Mind rigging by media.

 To comment upon the syndrome of paid news spread and institutionalised in various
states of India.
 To analyse the modes of media used to commit electoral offences.
 To study the various types of political crimes.

Nature of the study

This research project is Doctrinal in nature since it is largely based on secondary & electronic
sources of data and also since there is no field work involved while producing this research and it
largely involves study of various acts and comparison from different books, journal and other
online sources thus not being empirical in nature.

Sources of Data

Data that were used for the completion of this research project are all secondary sources of data
ranging from books, journal, articles and other online sources and as far as case laws are
concerned these cannot be said to be primary sources since they are not first-hand information or
judgment reports but a modified form found in books or journals. Constitution of India being the
most important primary source has been referred.

Mode of citation

The mode of citation referred n this project report is the 19th Bluebook citation.

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 Electoral Offences and Corrupt practices: Mind rigging by media.

I. INTRODUCTION

If a newspaper writes a false story, it is undoubtedly an unethical act. But if media propagates
falsity during elections, it could be either an electoral crime or a corrupt practice. 1 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, 1860.2 The whole authority to
govern is derived from the votes of the adult citizens of the country. This democracy is an
inalienable basic feature of Constitution of India. The concept of democracy as visualized by the
Constitution presupposes the representation of people in Parliament and state legislatures
through election3 . Any influence that hijacks public opinion and affects the exercise of the right
to vote in a free and fair manner eats at the roots of democracy. Though political parties and
candidates are free to propagate for voting support, they are precluded from misguiding,
spreading falsity, selling impossible promises, using caste, religion or regional feelings, using
public money and power to influence the voter with allurements of money and sedation of liquor.
All these unreasonable influencing factors are declared illegal. Punishments and disqualifications
are also prescribed.

(i) Constitutional Obligation of Election Commission

As Article 3244 vests 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 of the Commission to ensure free and fair polls,
avoiding any kind of undue influences, because that alone secures the health of democracy. In
pursuit 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

1
Media Law Review, (Mar. 28, 2019, 04:48 PM)
https://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010.pdf
2
Tony Bradley, The election cannot be rigged, but it can be influenced, (Mar. 28, 2019, 04:48 PM) ,
https://www.forbes.com/sites/tonybradley/2016/10/21/the-election-cant-be-rigged-but-it-can-be-influenced/
3
Kesavananda Bharathi v. State of Kerala, AIR 1973 SC 1461.
4
Article 324 in The Constitution Of India 1950 reads as Superintendence, direction and control of elections to be
vested in an Election Commission.

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 Electoral Offences and Corrupt practices: Mind rigging by media.

devolves on District Collectors, who as Chief Electoral Officers are supposed to prevent any
thing that stops the voters from thinking independently.5

(ii) Freedom of content

Undoubtedly, the media proprietors have freedom and authority to chose the contents of their
page or channel or decide the portion of their space for advertisements 6. The Supreme Court of
India7 has stuck down the statutes and executive orders of the Government when the State tried
to introduce controls on the content of newspapers, and restrict the space allotted to
advertisement by saying at least 60 per cent should be of news. It was considered as the 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.

(iii) What is happening?

The syndrome of “Paid News” that crept up into poll scene during 2009 is the equivalent of
‘criminalization of political parties’, ‘massive booth rigging’, ‘electronic voting machine
manipulation’, or massive distribution of liquor and money a few hours before polling. 8 It is
wrong to say that money for a news item is just an unethical practice of camouflaging
advertisement as news, or passing off a ‘falsity’ as a 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 a trinity of 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. Sometimes 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.9 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

5
Dr. Madabhushi Sridhar, TYRANNY OVER THE MIND: PAID NEWS AS ELECTORAL CRIME, (Mar. 28,
2019, 05:02PM) http://www.commonlii.org/in/journals/NALSARLawRw/2013/9.pdf
6
Article 19(1)(a), The Constitution of India.
7
Sakal Papers v. Union of India, AIR 1962 SC 305.
8
P. Sainath, (Mar. 28, 2019, 05:02PM) , http://www.thehindu.com/opinion/columns/sainath/article2523649.ece
9
N. Vittal , (Mar. 28, 2019, 05:02PM) http://www.rediff.com/news/report/election-commission-disqualifies-up-mla-
for-paid news/20111020.htm.

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 Electoral Offences and Corrupt practices: Mind rigging by media.

them to vote them. It is the new opinion-rigging crime committed by both politicians using both
gunmen and “pen-men”. 10

II. ADVERTORIALS, NEWS AND ADVERTISEMENTS

(i) News, (ii) views and (iii) advertisement was the old classification of media content. Presently,
the classification has changed to: (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 is an advertisement. 11

The much advanced Andhra Pradesh media has dubious distinction of being the pioneer in paid
news syndrome.12 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.13 Each and every political party candidate was
forced to enter into some package deal with the tabloid newspapers as the continuous campaign

10
Arvind Subranyan, (Mar. 28, 2019, 05:08PM)
http://dnasyndication.com/dna/top_news/dna_english_news_and_features/CIC_cracks_whip_on_paid_
news_phenomenon/DNMUM222972
11
Media Law Review, (Mar. 28, 2019, 04:48 PM)
https://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010.pdf
12
Sivramakrishanan, Never mind the elections, just rig the rolls, (Mar. 28, 2019, 05:08PM)
https://www.thehindu.com/opinion/op-ed/never-mind-the-elections-just-rig-the-rolls/article3311962.ece
13
Ibid.

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 Electoral Offences and Corrupt practices: Mind rigging by media.

of winning stories of their rival candidates created a psychological edge and left a worrying
factor in their cadre.14 Every candidate had to shell out a minimum of Rs. 5 lakh for not writing
adverse reports and for publishing favourable reports. The space and frequency of exaggerated or
false ‘favourable reports’ is directly proportional to the size of the package money. 15

(i) 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 exaggerating expressions in
Telugu language newspapers like “brahma ratham pattaru”,16 or “prachaaramlo doosuku velli
pothunnaru”,17 “mahilalu mangala harathulu padutunnaru”, 18
“yuvatharam utsahamsto urakalu
vesthu kerinthalu kottindi”, 19which are most of the times absolute falsities. The lack of truth in it
could be verified in that very newspaper, which publishes a similar story about the rival
candidate in the same page or another page or on the 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
moffusil 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”20, “Bhaaree Majority Dishagaa”21 , “Ye nota vinna bapiraju gelupu maate”22.
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

14
Ibid.
15
Media Law Review, (Mar. 28, 2019, 04:48 PM)
https://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010.pdf
16
A Telugu expression which means huge crowds thronged at the candidates campaign meetings.
17
A Telugu sentence meaning “he is marching ahead in campaign”.
18
A Telugu sentence which means “women folk are welcoming lighted lamps”.
19
A Telugu sentence saying “youth was very enthusiastic, cheering frequently at the candidate.
20
A Telugu Headline which means “victory is just a formality” in Telugu Newspaper, Andhra Jyothi (District
Edition), Bhimavaram, 23rd April, 2009, p. 4.
21
A Telugu Headline which means “heading towards massive majority”, Ibid.
22
A Telugu Headline which means “everyone says Bapiraju will win”, Id.

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 Electoral Offences and Corrupt practices: Mind rigging by media.

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.23 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 must be realized is that while generally reporting falsity is
question of ethics, circulating falsity on payment during polls is an offence.24

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

a) regularly writing favourably on front page;

b) writing favourably in regular succession on front page with a colour photo;

c) writing regularly with colour photos all through the campaign session, i.e. from date of
nomination to date of polling with interviews, news analysis, campaign trails etc.;

d) a package to write favourably and also to do negative campaign against his rival candidates;

e) an informative interview of the candidate with photos on condition that they should purchase
25,000 copies of the newspapers besides some consideration.25

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

23
ELECTORAL CORRUPT PRACTICE AND ELECTORAL OFFENCES, (Mar. 28, 2019, 05:02PM) ,
http://shodhganga.inflibnet.ac.in/bitstream/10603/202083/6/ch-5.pdf
24
Dr. Madabhushi Sridhar, TYRANNY OVER THE MIND: PAID NEWS AS ELECTORAL CRIME, (Mar. 28,
2019, 05:02PM) http://www.commonlii.org/in/journals/NALSARLawRw/2013/9.pdf
25
Supra Note 23.

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 Electoral Offences and Corrupt practices: Mind rigging by media.

crowds to his address from ratham26 or road-show. At no place did the media make an effort to
indicate that it was a sponsored programme or sold out as a slot for advertisement.

(ii) 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 space or 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 a
transgression against professionalism and ethics but a crime against democracy besides being a
punishable offence under both, the Representation of People’s Act and the Indian Penal Code.
The syndrome is not just the concern of Press Council of India but a real challenge to the
Election Commission, whose aim is to conduct free and fair polls, 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 or same page projects the rival candidates for similar amounts of money. With extremely
rich candidates contesting elections or enriched legislators seeking re-election, who have no
dearth of money, the media’s targets are easily achieved27.

(iii) Extortion by Media

Several candidates who are not very wealthy, or fighting elections on their own strength or
peoples’ support, complained of extortion by the media28. 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 of course, cost a lot more29. 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 lesser still, if that other person is worth only

26
A Telugu expression meaning specially made vehicle.
27
P. Sainath, in The Hindu, December 6, 2009; Sainath quotes National Election Watch 2009, stating that there was
338 percent asset growth of legislators, and that there was 70 percent increase in crorepati candidates in 2009. (Mar.
28, 2019, 05:20PM)
28
P Sainath, Medium, Message and the Money, The Hindu, October 26, 2009, (Mar. 28, 2019, 05:20PM)
29
News Report, The Hindu, April 7, 2009, (Mar. 28, 2019, 05:25 PM) .

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 Electoral Offences and Corrupt practices: Mind rigging by media.

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.

(iv) Corrupt Practices

Under Section 123 of Representation of People Act 1951, bribery, undue influence, appeals
made 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 “corrupt practices.” Later, in 1989 booth capturing
was also added as another such corrupt practice. 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 certainly a corrupt practice.30 These aspects have to be considered,
investigated and prevented by the machinery of Election Commission of India. The Commission
should not leave it to be decided at the time of hearing of election petition, which means that the
state would have allowed perpetration of corrupt practices and then waited for ‘proof’ of the
same before the election tribunals. If this is allowed, elected politicians who purchase ‘news’ will
take great advantage, the statement of Ashok Chavan being a perfect example:

When the Press Council of India asked Maharashtra Chief Minister Ashok Chavan to depose on
the allegations of indulging in paid news crime, he conveniently tried to escape saying “the
appropriate forum to respond is the court of law the election petitions are tried”31. 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 that
emerges from his statement is that such instances are to be tried in courts of law. But was
Chavan’s election challenged as based on ‘paid news’ offences? 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.32

30
Media Law Review, (Mar. 28, 2019, 05:22 PM)
https://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010.pdf
31
PTI Report, Paid News Issue: Press Council Panel Records Chavan’s Statement, The Hindu, January 29, 2010.
32
News Report, The Hindu, April 7, 2009, (Mar. 28, 2019, 05:25 PM) .

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 Electoral Offences and Corrupt practices: Mind rigging by media.

After declaring the candidates elected, the only remedy left is challenging the validity of election
and then punishing for 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 ‘justice’ delivers. If the rival candidates do not choose to trouble themselves in
prolonged legal battles, the elected amasses sufficient wealth during his term and gets ready for a
renewed attack in the next election wherein he purchases more space and sponsors more falsity.
Thus the Election Commission must assume more responsibility in preventing this unfair
information war on the side of paying candidates against the vulnerable voters of this country.

III. POLL CRIMES

(i) Unduly Influencing Voters

Unduly influencing of voters by the media is an election crime. Such propaganda, done for
consideration, and camouflaged as a news item must be examined to see whether it unduly
influenced the free exercise of electoral right, which is defined as a crime under Section 171C of
the Indian Penal Code and as “undue influence” under the Representation of Peoples Act, 1951.
While the RP Act explains “undue influence” in general terms and supplements with an
illustration that threatening a candidate or elector with injury, or consequence of divine
displeasure if not favoured would constitute “undue influence”. Section 171C of IPC 33 also refers
to similar language used in Section 123 of the RP Act, saying interference or attempt to interfere
with free exercise of any electoral right is an offence.

Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral
right commits the offence of undue influence at an election. The punishment for the offence of
undue influence is prescribed under Section 171F of IPC, which imposes imprisonment up to one
year or fine or both. In both legislative provisions, the first part is a general definition, which
could include any attempt to unduly influence a voter. While the subsections in both laws give an
example for undue influence, it is not limited to these examples only. Subsection (2) begins with

33
Indian Penal Code, 1860.

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the words ‘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. The voter can be influenced with good deeds and
statements, healthy campaigns explaining achievements and prospects, but that should not be
undue influence. It refers to abuse of influence.34The Supreme Court summed up the position in
Shiv Kripal Singh v. VV Giri35, holding: “What amounts to interference with the exercise of an
electoral right is ‘tyranny over the mind”.36

As per both laws, not just interference, but also attempt to interfere with free exercise amounts to
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 the case of package
deals, the reporter or publisher was 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”, which attempts to show that the
candidate has divine blessings to win37. Another headline “Pampinee Vaalladi; Votlu Abbayigari
Abbayivi”; . While the first headline influences votes using the divine reference, the second one
throws an allegation that others distributed money, but the candidate who paid that media house
would win. These two statements alone are sufficient to make the newspaper guilty under the RP
Act and IPC.

(ii) Spreading Falsity

Publication of false statements is both, a corrupt practice and an 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

34
Bachan Singh v. Prithvi Singh, AIR 1975 SC 926.
35
AIR 1970 SC 2097
36
Shiv Kripal Singh v. VV Giri, AIR 1970 SC 2097.
37
A Telugu expression which means ‘all people have blessed Anjibabu’ Andhra Jyothi, Bhimavaram, 23rd April,
2009.

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several other legal provisions, such as Section 123(4) of the Representation of people’s Act,
1951. Section 123(4)38 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 the most crucial definition, one which the media is expected to know and adhere to in
their publications. Within the 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. The media is vulnerable here too.

(iii) Not indicating and sending ‘Paid News’

The newspapers have been the pamphlets of politicians during elections. They performed job of
a publishing press where pamphlets are simply 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

38
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.

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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 127A(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 the electoral machinery the chance of regulation and thus
committed a violation of the RP Act.39

(iv)Excessive Expenditure

The sold news columns often involve 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. The
media, through RTI applications, recovered the statement of election expenditure by Chief
Minister, Ashok Chavan, which show ridiculously low amount for advertisement, i.e., Rs. 5379/-
only. Both his election expenditure and campaign are riddled with falsity. This outlines the need
for implementation of such provisions which empower 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. 40

(v) Invalidating Election

39
Media Law Review, (Mar. 28, 2019, 06:22 PM)
https://www.nalsar.ac.in/pdf/Journals/Media%20Law%20Review_2010.pdf
40
Tony Bradley, The election cannot be rigged, but it can be influenced, (Mar. 28, 2019, 06:48 PM) ,
https://www.forbes.com/sites/tonybradley/2016/10/21/the-election-cant-be-rigged-but-it-can-be-influenced/

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In the second phase, the false reporters could be convicted and election could be declared
invalid. This is because the ‘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, 195141.

(vi) Disqualification

On proof of this corrupt practice of the candidate, he would be disqualified from contesting
elections, according to Section 8A of RP Act42, and along with him, those who committed this
corrupt practice would forfeit the right to vote under Section 11-A of the same Act. The Election
Commission should probe into the allegations levelled against the journalists union and impose
disqualifications on candidates from contesting and journalists from voting in coming elections.

(vii) 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. Rule 743
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.

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

41
Representation of People’s Act 1951
42
Representation of People’s Act 1951
43
The Cable Television Networks Rules 1994.

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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. The question is the lack of will and courage to punish the widespread political
criminals joining hands with media persons.

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IV. CONCLUSION:

Role of the Election Commission & the Press Council of India

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

a) During the election process the EC 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.

b) After the polls are over, the EC should continue to direct the officers through the
Governments to prosecute the offenders before the courts of law, even if no one filed election
petitions for the same. 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. While the EC 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 the EC to allow it
to take action. The Press Council of India could also censure 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

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paid news, it is important to protect the sanctity and fairness of elections by preventing undue
influences. For this, the election-conducting machinery should be alert, with its eyes and ears
open, to receive complaints from civil society. It must also be prompt in acting effectively to
ensure free elections through checking mind-rigging by politicians through media. At the same
time, the Press Council of India has to exercise all its power and build a strong opinion among
people to protest against the unethical syndrome of paid news. Ethics is something which has to
come from within and an issue of integrity of journalist and honesty of media organization.

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