22 Jun 2020 6:22 AM GMT
The menace of paid news rears its ugly head during elections throughout India. From Local Body elections to Parliamentary elections, the Candidates are increasingly misusing mass media to influence elections in their favour. The Press Council of India in its report on paid news has observed that the malady of paid news goes beyond the corruption of individual journalists and...
The menace of paid news rears its ugly head during elections throughout India. From Local Body elections to Parliamentary elections, the Candidates are increasingly misusing mass media to influence elections in their favour.
The Press Council of India in its report on paid news has observed that the malady of paid news goes beyond the corruption of individual journalists and media companies and has become pervasive, structured and highly organized. The definition of paid news, as endorsed by the Election Commission of India is "any news or analysis appearing in any media (Print and Electronic) for a price in cash or kind as consideration".
Though printed on the same page, there is a stark distinction between News and advertisements. News is meant to be fair, balanced and neutral in contrast to paid advertisements speaking highly of particular brands, products, persons etc. The amalgamation of news and advertisement leads to the unholy nexus called 'paid news'. Innocent readers including voters, who rely on the truthfulness of a news article are constantly coming across such paid news in favour of a particular party or candidate. Such readers can hardly distinguish between actual news and the advertisement of a particular party or candidate published as a news article.
Countering Paid News
The practical difficulty in countering the expanse of paid news is due to lack of any mechanism to prove and punish the perpetrators including politicians, journalists, media outlets etc. The Election Commission of India has published considerable literature and an array of instructions on paid news over the years. Media Certification and Monitoring Committees ('MCMC') have also been constituted to monitor political advertisements during election campaigns. However, due to lack of any effective enforcement mechanism the directions have been circumvented without much effort.
Provisions enacted to curb Paid News and prevalent loopholes and workarounds
Some Provisions enacted and measures taken by the Election Commission of India to curb Paid News –
Despite various provisions and instructions, parties, candidates, journalists and media houses find it easy to bypass such provisions. Some examples of how the aforesaid provisions are made ineffective –
Therefore, the present legal framework is being bypassed by candidates, political parties, journalists etc.
Narottam Mishra Case
The Election Commission on 23.06.2017 passed an Order under Section 10A of the RP Act 1951 disqualifying Dr. Narottam Mishra for three years from the date of the Order for incurring expenditure and exceeding the limit prescribed by the EC on publication of around 42 'paid news' items in various dailys.
That the EC's findings came up for challenge before Hon'ble High Court of Delhi. That the Ld. Single judge of the High Court dismissed the Writ Petition filed by Dr. Mishra and upheld the Order passed by EC inter alia on the grounds that Dr. Mishra had knowledge of the publications, he failed to disavow the said publications and knowingly took advantage of the expenditure.
However, the Hon'ble High Court of Delhi's division bench in Appeal quashed the Order of Election Commission after relying on the judgement in Indira Gandhi v. Raj Narain (Supra.) and holding that to establish disqualification under Section 10 of the RP Act 1951 two things have to be established firstly, that the expenditure incurred by the candidate was beyond the limit prescribed, and secondly, that the expenditure was incurred / authorized to be incurred by the candidate.
The Division bench of the Hon'ble High Court held that from the facts, it could not be established that Dr. Mishra had knowledge of the publication or implied authorisation to incur the expenditure and therefore, EC's order could not be sustained. The matter is presently pending as a in a Civil Appeal before the Hon'ble Supreme Court. The decision in the matter may well decide the future and standard of proof for paid news in Elections.
Differential treatment of Television and Print media.
Section 126 of the RP Act, 1951 prohibits any public meeting, campaigning or publication of material related to election on television or cinema during the 48-hour silence period, however, it does not prohibit publication on print or social media. This anomalous situation was inter-alia subject to scrutiny by Committee to examine Section 126 of the RP Act 1951 constituted by the Election Commission of India.
The Committee had noted that during the 48-hour prohibited period during which no campaigning is permitted, there are many indirect methods adopted by candidates and political leaders which may directly or indirectly influence the minds of voters in favour or against some party/candidate. It was observed that in recent elections political parties had used print media during the prohibited period since the same was not covered under Section 126. To address the issues the committee had suggested amending section 126 of the RP Act 1951 to include "publication, publicising or disseminating any election matter by means of print or electronic media." as an offence. 
The Election Commission has pushed for various legislative reforms including making paid news an electoral offense attracting disqualification. The Commission since 2011 has been proposing to the Ministry of Law and Justice, Govt of India to amend the RP Act 1951 and make publishing and abetting the publishing of Paid News an Electoral Offence under chapter – III of Part VIII of the Act. Thereafter, in February 2020, the Commission in a meeting with Ministry of Law reminded the Ministry of around 40 proposals for electoral reforms which have been pending since long including appropriate legislative amendments to classify paid news as an electoral offence / corrupt practice. However, the legislature is yet to effectuate the recommendations of the commission.
The Election Commission is aware of the challenge being faced by democracy due to Paid News. However, despite various directions and recommendations, the present legal framework around the issue remains inadequate and insufficient. Unless the 'Paid News' is classified as an offence and such offence is made a corrupt practice resulting in disqualification, present measures to curb it will remain toothless.
 Report on Paid News - Press Council of India – 30.07.2010
 No. 491/Media/2011 (Advt) – ECI Letter – 16.08.2011
 No. 491/Paid News/2012/Media – ECI Letter – 27.08.2012
 No. 491/Paid News/2019/Communication – ECI Communication – 25.02.2019
 Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1
 Dr. Narottam Mishra v. Election Commission of India 2018 SCC OnLine Del 9075
 Rajendra Bharti v. Dr. Narottam Mishra & Anr. C.A. No. 812/2019
 The Representation of The People Act, 1951 (Act No.43 of 1951)
 No. 3/1/2011/SDR – ECI Letter – 03.02.2011
 No. ECI/PN/24/2020 – Press Release by ECI – 18.02.2020