Indirect victory against paid news

BY Madabhushi Sridhar| IN Media Practice | 13/05/2013

The Allahabad High Court on May 3 rightly confirmed the order of Election Commission of India (ECI) disqualifying a legislator indulging in paid news. For the first time in the electoral history of India, an elected representative lost her seat for purchasing publicity in the guise of news. However this punishment was not for the unethical practice but for suppression of expenditure.

Umlesh Yadav, MLA from Bisauli in UP, was disqualified under section 10A of the Representation of People’s Act 1951 for a period of three years. This legislator did not include in her official poll accounts the amount she spent on paid news, in two Hindi dailies Dainik Jagran and Amar Ujala, during her 2007 election. The defeated candidate complained to Press Council of India (PCI) how paid news adversely affected his prospects.  The PCI did a professional job by inquiring into it and found the two newspapers guilty of ethical violations. Their adjudication report was sent to ECI for an appropriate action. That resulted in a disqualification penalty.

By suppressing expenditure on ‘paid news' and filing an incorrect or false account, the candidate was guilty of not merely circumventing the Representation of Peoples’ Act, 1951, relating to election expenses but also of resorting to false propaganda by projecting a wrong picture with the support of a willing (and billing!) media and defrauding the electorate.

When the ECI was probing the truth or otherwise of 2009 poll expenses of Maharashtra’s former Chief Minister Ashok Chavan, the latter questioned the authority of the ECI to do so. The court at the preliminary level granted the stay against ECI’s process but ultimately the former CM’s petition was dismissed and ECI’s power to probe into this electoral offence was confirmed. 

Umlesh Yadav appealed against disqualification, challenging the jurisdiction of ECI to question her legitimacy of membership, claiming that it was the exclusive privilege of the House. She challenged the constitutional validity of Section 10A of RP Act alleging that the provision contradicted the Constitutional scheme under Article 191 which gives the Governor the power to disqualify. Rejecting her contention, the Allahabad High Court held that disqualification under section 10A was not in conflict or inconsistent with the Constitution. 

The main issue was whether the expenditure for two advertisements on April 17, 2007 in Amar Ujala and Dainik Jagran were shown in the account of expenses by the petitioner u/s 78 of RP Act. The advertisement was put within borders with the word ‘Advt’ at the end. In fact, the advertisement was disguised as a news item and mentions that the voters of Bisauli constituency were in her favour. Her name was mentioned in several places and also several others were quoted as supporting her.  A bill of Rs 21,250 issued to one D P Yadav was paid in cash. 

Similarly, Amar Ujala also published a box which at the end contained the word ‘Advt’. Amar Ujala also claimed before ECI and PCI that D P Yadav paid Rs 8,000. The MLA contended that they got published an ‘appeal’ in those newspapers for Rs 840 only, and that too was paid by her husband D P Yadav, as President of Rashtriyav Parivarthan Party, which is permitted under Section 77 (Explanation RP Act).  

The High Court confirmed the conclusion of ECI quoting from its order: “…she failed to lodge her account of election expenditure in the manner required by law within the meaning of section 10A of the said Act. The Commission is also satisfied that she has no good reason or justification for the said failure as, instead of admitting her failure, she has denied to have filed an incorrect account and defended her act of having filed an incorrect account...” 

The media, which is supposed to report truthful accounts of electioneering, was guilty of spreading electoral falsity by taking money. More than money, muscle or any other inducement, the well-orchestrated untruth influences the mind of the voter and any vote caste upon that false basis should be invalid and it cannot form basis for the authority to represent the people.

The media received a drubbing from ECI and PCI, which was confirmed by High Court.  Paid news is defined by PCI as “any news or analysis appearing in any media (print and electronic) for a price in cash or kind as consideration.”

The judgment of the Allahabad High Court is mainly on the power of the ECI to disqualify a legislatior,  rather than on the ethical issue of false propaganda. There was also no scope of direct indictment of media because the court was deciding the issue of disqualification of legislator rather than the de-licensing of media. Media was neither a party to the dispute before ECI nor before High Court, though the media deserved to be indicted for ‘suppressio veri suggestio falsi’ (suppressing truth and suggesting falsehood).

Besides censure by PCI, media persons (including companies) can be prosecuted for falsification of accounts and information. If media did not issue receipt for ‘paid news’ it could be an offence under the Income Tax Act, and if what they propagated through paid news was untruthful and thus adversely influenced the voters, each person involved in such falsity could be prosecuted under RP Act for exerting undue influence. Paid news, thus, is not just an ethical issue, but a poll crime too. 

Madabhushi Sridhar is Professor & Coordinator, Center for Media Law & Public Policy, NALSAR University of Law, Hyderabad