essay
Some of the Election Commission’s efforts raise questions about whether it is expanding its ambit too aggressively

Does the Election Commission (EC) pose a threat to freedom of speech and expression and to freedom of the media? Does that, by extension, pose a threat to democracy and citizens’ empowerment? Some may find the idea surprising, as the EC has come to be widely seen as having revitalised and transformed itself over the last two decades into a truly independent constitutional body ensuring timely and fair elections. Besides holding elections on time, regularly and with increasing efficiency, the most important of EC’s many recent achievements is undoubtedly that it has been able to drastically reduce election-related violence. It has also been able to significantly reduce threats, bullying and other strong-arm methods; also bogus voting, booth-capturing, other means of election rigging, buying votes with liquor, cash or gifts and other malpractices more inventive. It has worked hard to keep control of the administrative machinery in an attempt to free elections from partisan political interference, especially in favour of the ruling party. On occasion, it has even been able to face down powerful chief ministers. However, it remains to be seen if the EC will demonstrate such muscular assertiveness at the national level with the more powerful parties of the ruling and the opposition alliances. The EC has also been aggressively monitoring election expenses and trying to ensure they are within permitted limits. It has tried to involve civil society in election monitoring. In addition to all this, the EC has been able to gather considerable support across the political spectrum for a more elaborate model code of conduct. The EC has been able to implement many aspects of the code even though the code itself—which the courts have occasionally supported—has no formal constitutional or legal standing. This has been possible because it has been voluntarily accepted by political parties. This success and the EC’s crackdown on illegal bankrolling of electioneering has captured the imagination of the public and enhanced its credibility.

Yet in the area of the model code of conduct, some doubts regarding the EC’s work and the stands it has taken start to arise. It will be my contention here that when it touches upon the ‘content’ of what is being said, promised, criticised, highlighted by politicians and parties, its role starts to become problematic. What has found wide acceptability is the fight against and prohibition of personal attacks, hate speech, instigation and mobilisation of communities (however defined) against one another, incitement of violence, threats to overthrow the democratic order and more such that could increase the heat of a campaign and spark violence. But where to draw the line? How to interpret the statements? How to create safeguards to prevent such power from being used to silence genuine criticism and accusations? How to prevent this power from being misused to suppress those who expose social injustice? How long before these begin to be extended to the media, to citizens and, heavens forbid, in non-election contexts?

The problems arising from the attempt to regulate ‘content’ can be examined further by considering an issue which has recently attracted some attention—freebies, a loaded word if there was one! Last year, the Supreme Court directed the EC to frame guidelines for regulating the contents of manifestos. The argument was that political parties disturb the playing field and vitiate the election process by offering freebies while seeking votes or promising them in manifestos. The court also said there should be separate legislation on this. But at a meeting subsequently called by the EC, all the main national political parties rejected any attempt to regulate the content of their manifestos, arguing that formulation of programmes and policies was solely their prerogative. Earlier this year, the EC directed that political parties should give their rationale for any freebies they might offer and explain how they would pay for them. This seems reasonable enough, but many questions arise from this entire affair. It is far from clear what is a ‘freebie’. It could be taken to mean free bicycles, TVs, foodstuff, laptops and the like promised by political parties before elections and often handed out by governments once they are in the gaddi. But many ‘freebies’ have been seen as welfare programmes. One example is the school mid-day meal, which has improved students’ health and attendance, bringing about long-term social improvement. Then there is the debate over the relative anti-poverty benefits of programmes like direct cash transfers versus subsidised or free food and other essentials of life. In other words, it is not clear where anti-poverty and welfare programmes end and ‘freebies’ begin. Further, do subsidies and tax con­cessions given to businesses—which too run into thousands of crores—count as ‘freebies’? On what basis are such subsidies offered? More generally, what should be the correct balance between investment and welfare? And how much welfare can a country afford? Also, for how long should successful and highly profitable businesses get subsidies for purportedly promoting growth, exports or whatever. The questions multiply.

 
 
The EC has gained credibility over the years, standing up even to powerful CMs. Will it be able to stay strong?
 
 
A related idea—that anything that “influences the voters” should be prohibited in order to create a level playing field—can be observed not only in the Supreme Court’s direction but also in the decade-old campaign by the EC to ban opinion polls. However, the EC has been hesitant to act despite the fact that it has, on the same grounds, been successful in banning the announcement of exit poll results until after all polling is completed. This may possibly be because the main national parties have taken opposite stands on the issue but also, more importantly, because it touches the sensitive question of freedom of the press and the media. Recently, in spite of the opinion of, and even under pressure from, senior bureaucrats and legal advisors of the central government, it has reiterated its stand that it does not have the powers to go for a ban but recommended that the government bring forward legislation to proscribe opinion polls. The EC’s assumption seems to be that voters will tend to vote for candidates or parties who polls predict are winning. But it that true?

In the last few months almost all opinion polls have been suggesting that the Congress and the UPA are going to do badly and that the BJP and the NDA are going to do well. However, one can reasonably visualise, even observe, different responses of different sections of the electorate to this information. It may motivate those voters who do not like the BJP’s policies (or its candidates) to work harder to mobilise votes for the BJP’s rivals. And BJP and NDA candidates, party workers, supporters and voters may become complacent and may not even vote. Workers and voters of the Congress and its allies may start working harder. Some AAP supporters might (thinking the BJP the greater evil) vote for the Congress instead of their own candidate in case they know he doesn’t stand a chance. Many more scenarios could be visualised. Given the tremendous interest, even hunger, for opinion poll results, there seems nothing wrong in truthfully surveying voters and letting citizens decide for themselves. And if pollsters are exposed as dishonest or biased, they will lose credibility, as has happened in the past.


Illustration by Sorit

It may be that the failure to distinguish between illegitimate and legitimate forms of influencing voters may be causing some confusion in this matter. Then there’s the case of ‘paid news’. It might be recalled that it was Prakash Karat, a senior CPI(M) leader, and N. Ram, editor of The Hindu, who exposed this practice some years ago. Recently, a private TV channel conducted a sting that revealed how opinion pollsters were willing to tailor or even concoct their results to suit what those who commissioned the polls want. These were corrective exposes and there’s no doubt the media and the public will always support steps to check such corrupt practices.

Then there are legitimate ways of influencing citizens and voters, forming the essence of democracy. This is what political parties, their candidates and workers, civil society organisations, NGOs, experts and intellectuals as well as the media do as a matter of course—even when elections are not on. These agencies present their ideas and arguments through a variety of forums—in personal discussions in coffee houses, in public meetings, outdoors and indoors, through leaflets, pamphlets, books, audio and video cassettes, CDs and DVDs, the internet and so on. The media, beside its primary role of informing the public by covering newsworthy developments in the public spheres also investigates and unearths a diverse variety of social ills­—drug abuse, poverty, social injustice and oppression, violation of human rights, corruption, environmental degradation, prejudice, oppression and violence against minorities etc. It may also report on good work—of individuals, NGOs, the administration and so on. It comments on and provides a platform for discussion of questions of foreign policy, global developments, science and technology, education, environment and other topics.  Finally, it takes a stand and tries to influence public opinion, government policy, civil society and voters in directions it thinks are right. The internet and the World Wide Web, by enabling more interactivity and easier publication of opinions, arguments and ideas, even by small groups and individuals, increase vastly the possibilities of greater participation by citizens in this discussion.

It is the existence of this diversity of political and media options that enables the citizens to make up their minds and act through voting and other ways to actively participate in governance and take and influence decisions affecting their societies and their lives. If this collective debate is sought to be pre-empted or restricted or stifled—by whosoever, in whatever manner—it can hardly result in deepening of democracy and greater and continuous participation of citizenry in governance. This will be the case whether it is done by the bureaucracy or through institutions like the EC, TRAI, SEBI etc, or by the judiciary, or by institutions like the Press Council of India or other commissions.

 
 
The media, people, politicians, the judiciary—may all be seen as influencing voters. But there’s no banning them all.
 
 
If they are able to tell politicians and the media what stands are acceptable and what stands they should take and make them adhere to their advice, that may only result in a dictatorship by the bureaucracy together with the judiciary, which may be benevolent at best, and may most likely favour only the middle and propertied classes. What may result is a null, effete democracy and discourse where the playing field may or may not be level but which would certainly be empty of any real content or substance. My argument here is not that we have at present reached anywhere near this state of affairs, but only to draw attention to some worrisome trends leading in that direction. It is with this perspective in mind that some directions to and comments about the media by the EC and its officials need to be examined. In the run-up to the polling, the EC issued repeated directions and warnings to social media to ensure that nothing unlawful, malicious and violative of the code of conduct is posted by parties and candidates and to remove all such material. Some questions that arise are:  why is the social media being held responsible for judging and directed to take action, especially when the EC has issued guidelines to political parties to get their social media campaigns cleared by its media certification and monitoring committee before issuing them? And why cannot the EC use its wide-ranging powers to take action directly on parties and candidates for any lapses? Why not specify which particular items are to be removed rather than issue general warnings? Why warn the social media alone to the exclusion of the print and broadcast media?

Another worrying trend is for senior EC personnel to comment on the media negatively, both in general terms and about their election coverage. In the run-up to the Lok Sabha polls, the chief electoral officer in Karnataka berated the media, saying that when some TV channels, in order to improve their TRP ratings, air some programmes, they may indirectly help some political parties or candidates. He is further quoted as having taken a representative of a particular TV channel to task for calling voters and asking some questions, following which he had to issue clarifications. A few days later, he was quoted as saying that making news by quoting the views of the public would harm the credibility of media organisations and journalists. He also said that pre-poll surveys, which are done by seeking and quoting voters’ opinions, should be impartial. He clarified that the EC had no powers to issue any directive to the media on news coverage. Why asking questions from the public and quoting from their replies affects elections adversely is completely baffling. These directions and statements may not amount to much in the overall scheme of things, but they reveal a mindset and attitudes and ideas about the media and its role during elections.


Illustration by Sorit

In some messages that the EC has put out with its exhortations to citizens to exercise their franchise, some intimations can be had of the kind of national agenda it is trying to promote.   One message appeals to them to vote “pro-development” and for “well-educated” candidates. This may give rise to doubts in many people’s minds: they might think of this as the EC’s attempt to influence voters by discouraging them from voting for apparently backward-looking, communal and casteist and linguistic community agendas. To start with, it is not clear why, say, an MTech would make a better parliamentarian than someone who has passed high school or is a BCom. It can be observed that at present, “well-educated” candidates are largely from urban and metropolitan areas and are usually not so well-acquainted with conditions and problems in rural and backward areas, and most of them do not pay much attention to their constituents once elected. Besi­des, since the Constitution does not specify any educational qualification for candidates, would this appeal not be against the principles of the Constitution? Regar­ding the “pro-development” cri­­t­­erion, it can be asked whether this is an attempt to make an appeal in favour of the kind of development policies that the central government has followed since the economic reforms of 1991, which, though they have succeeded in increasing the rate of growth, have greatly benefited the rich, particularly the super-rich and those in larger urban and metropolitan centres. And they have benefited very little the very poor, especially those from rural areas. Also, why has the EC not asked voters not to vote for crorepatis and multi-crorepatis who criss-cross the country in choppers to seek votes and then are not to be seen at all once they have been elected?

Why not ask them to vote for candidates who have incomes like their own and who live and work in and care for their constituencies, even after winning elections? Why not ask them to vote against those with criminal records? Or against those who are corrupt? A more general question is: is it wise for the EC to violate the essential principle of neutrality and non-partisanship by asking voters to vote for candidates with certain qualifications, agendas etc and not for others? In conclusion, it can be possibly be said that the kind of priorities and agendas that the EC seeks to promote by and large coincides with that which the ruling bureaucratic establishment has pursued in successive governments in recent decades.

 
 
Against all the attacks on the media, it only has its own credibility as a shield. Public support is another.
 
 
But the routine, almost casual denigration of the media—that it is owned by corporates and, by implication, serves corporate interests; that it indulges in corrupt practices like ‘paid news’; that it is bothered only with higher TRP ratings and increasing circulation to get more ad  revenue; and that it puts its commercial interests above public purpose—is not confined to EC officials. Rarely do bureaucrats, judges and politicians miss an opportunity to point out the ills of the media or of sections of it. “Aberrations” was the word used by the prime minister a few weeks ago. ‘Paid news’ has come in handy as a stick to beat the media with. In February, in response to a question about ownership of media by corporates and politicians, TRAI chairman Rahul Khullar had this to say: “TRAI is working on this and will come out with recommendations. There are many troublesome issues and each needs to be deliberated upon to ensure the media’s freedom of speech.... At media firms owned by corporate houses, where is the line dividing boardrooms and newsrooms? There also is the question of editors’ independence. That is, are bottomlines driving bylines?” Interestingly, in all this, there is no mention of the effects of the entry of foreign media, both directly with their own publications, broadcast channels, social media etc and through joint ventures, and also of foreign corporate ownership and control, even if now partial, of Indian media companies.

My argument is not that there are no negative trends arising from the  media being owned privately by rich shareholders and being run as a business. Or from being owned or funded overtly or covertly by Indian corporate houses with other business interests who may use it for their business ends. Or from the entry of foreign media and foreign capital in Indian media, which both have their own, often very different, interests and agendas. Remarkably, in this election their diverse interests have coincided in pulping the Congress-led government, probably justifiably, and promoting Narendra Modi as the next prime minister of India. How this has to be confronted and dealt with is for the media and the public to decide, free from the interference of those in power in the state structures. Rather, my argument is that, since they have made no proposal to change the ownership structure of the media, all that the ruling elite’s berating the media amounts to is an attempt to browbeat and delegitimise the media and bend it to their purpose. Towards this end, they seek to impose a code of conduct. To some extent, they have been successful in relation to the broadcast and internet media, but the press has been the sole holdout, till now at least. (Though it must be admitted that in spite of this, in recent years, some TV channels and some new print magazines have shown great daring in exposing corruption and even the plan behind the Babri Masjid demolition by means of sting operations and other investigations. In comparison, traditional newspapers have been much more cautious.) Against all these attacks and attempts to subdue it, the media has only its own credibility and public opinion on its side. Some lessons can be learnt from the fight against late prime minister Rajiv Gandhi’s notorious defamation bill which was brought forward in the late 1980s when he was beset by the Bofors scandal that was hurting his reputation and hurting him politically too. Then, the press, led by the Editors Guild of India, fought back and forced him to withdraw the proposed draconian legislation. Now too, the press and other media have to fight all the way on their own. But against methods that are much more subtle and cunning, against adversaries who have much greater credibility, persistence and a long-term plan. Only then will they be able to defend the freedom of speech and of the media and contribute to the deepening of democracy and greater participation in and control of government by the citizens of our country.


K.N. Hari Kumar is former editor-in-chief of the Deccan Herald and Praja Vani, both based in Bangalore

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