The freedom of expression and speech is at the heart of any civilized state that professes to be democratic in spirit and ethos. This freedom of expression is critical in electoral democracy for voters, lawmakers, and political parties. Although freedom of speech and expression of political parties is not recognized individually in India, as with the press, this right derives from the freedom granted to every person under Article 19 of the Indian Constitution. Political parties employ free speech and expression to appeal to voters by promising them various rewards for voting for them, criticizing their opponents’ views and policies, and providing insight into their vision and plan for their fellow citizens. Clause 2 of Article 19 also governs political communication by imposing numerous constraints on freedom of speech and expression. Thus, under the guise of electoral democracy and freedom of speech and expression, politicians are not permitted to engage in any criminal activity, commit any infraction, or inspire others to commit an offense. Nevertheless, several complaints have been leveled against the country’s current political atmosphere, alleging that freedom of political expression is being exploited for the petty gain of election at the expense of national interest. As a result, this article examines this area’s legal and political situation, focusing on communal politics, hate speeches, paid media/news, and unfulfilled manifestos.
INTRODUCTION
Political communique is the function of communication in politics, including speeches made by politicians and interactions they have with people during elections. It is the strategic use of communication to shape public perceptions, opinions, and political behavior. Not the message’s origin, but its goal and content—i.e., that it is a “purposeful communication concerning politics”—defines communication as “political.”[1]
It encompasses the creation and generation of messages by political players, their direct and indirect methods of transmission, and their reception. Formal or casual language, public or private settings, and mediated or unmediated media are acceptable.
FREEDOM OF SPEECH AND EXPRESSION
Freedom of speech and expression is the right of a person to freely express his or her thoughts and opinions using any means, such as voice, writing, gestures, signs, photographs, or sculptures[2]. It is a natural right that every human being is born with. This freedom is also incorporated in Article 19 of the Universal Declaration of Human Rights[3] and represented as a fundamental right in Article 19(1)(a)[4], which states, “(1) All citizens shall enjoy the right (a) to freedom of speech and expression;…”
RESTRICTIONS ON THIS FREEDOM
In a democratic society, no right can be absolute, and the same holds for the freedom of speech and expression. Therefore, it has been guaranteed that the use of this right does not violate a reasonable constraint. Therefore, although Article 19 clause (1)(a) guarantees freedom of speech and expression, clause 2 imposes a number of legitimate limitations.[5]
FREEDOM OF POLITICAL COMMUNICATION
Article 19 of the constitution guarantees all citizens the freedom of speech and expression; hence, a person does not forfeit this right by joining a political party or running for office. Politicians and political parties may use their right to freedom of speech and expression through political communication. In countless decisions, the Supreme Court has acknowledged this privilege in favor of business entities[6] and the press[7], and the same logic applies to political speech. However, the court has also ruled that “commercial speech” that is deceptive, unfair, misleading, or untrue falls under Article 19(2) of the Constitution and can be regulated/prohibited by the state; similarly, if the freedom of speech is available to politicians and political communication falls under it, the various restrictions under Article 19(2) also apply to this political communication.
WHETHER THE ALREADY EXISTING RESTRICTIONS ARE SUFFICIENT TO TACKLE THE VICES ARISING OUT OF POLITICAL COMMUNICATION?
Political parties are “the lifeblood of the whole constitutional structure” and play a crucial role in a democracy[8]. In a case, the Central Information Commission (CIC) declared political parties to be public authorities, citing the 170th report of the Law Commission of India, which stated[9]: “It is the political parties that form the government, staff parliament, and administer the country’s governance.[10]” In its ruling, the CIC also cited multiple constitutional provisions that allow political parties to be granted privileges without being held responsible for minimal responsibilities[11]. Internationally, the European Court of Human Rights has acknowledged that “the position of the author of the speech is important in determining the legality of limitations imposed by the State”; therefore, “interferences with the freedom of expression of a politician… require the court’s closest scrutiny.”[12]
Consequently, despite the fact that political parties and politicians have the same freedoms as the general public, there must be specific rules limiting this freedom of political speech. Political parties cannot be on the same footing as other persons because they are unique bodies vested with more authority and obligations toward the democratic spirit of the nation. They are obligated to defend the nation’s constitutional ideals, such as secularism, equality, fraternity, sovereignty, democracy, and federalism.
Political communication is governed in a dual fashion. Article 19(2) restricts this right; therefore, all the general laws of the nation regulating the freedom of speech and expression of a person are applicable to politicians and political parties. In addition, the Representation of the People Act of 1951 is a statute governing India’s political process. This law, through provisions such as Section 123 (Corrupt practises), Section 125[13] (Promoting enmity between classes in connection with elections), Section 126 (Prohibition of public meetings during the period of forty-eight hours ending with time fixed for conclusion of a poll), and many others, controls and restricts the freedom of expression and speech of politicians and political parties.
In spite of the existence of both general and election-specific regulations, violations of the prohibition stipulated in Article 19(2) are prevalent in India. Current rules are insufficient to govern and prevent vices arising from political communication in society. There is a lack of legislation governing some areas, particularly those that have arisen as a result of the fast growth of technology. one specific feature where Abuse of this freedom by politicians and other representatives of political parties is unregulated. The majority of the time, self-proclaimed spokespeople of politicians and political parties make remarks, as opposed to the politician himself or the official spokesman for political parties. These self-proclaimed representatives are either not approved by the head, or if they are authorized, the heads shrug off their responsibilities when the issue of responsibility arises.
ISSUES AND CHALLENGES ARISING OUT OF THE FREEDOM OF POLITICAL
COMMUNICATION DUE TO LIMITATIONS IN EXISTING LEGAL REGIME : FINDING A SOLUTION
Political communication is as ancient as politics itself, but its relevance has expanded exponentially and will continue to grow with time. As few rules particularly address political communication, addressing this rising problem and its difficulties have become necessary. Here are a few challenges, concerns, and difficulties associated with political communication:
- Hate Speech
Freedom of expression is fundamental to a democratic society. Voices of critique and disagreement are essential for a lively and intelligent society. However, political speeches often adopt a contentious tone to capitalize on societal preconceptions for electoral benefit.”[14] Although Article 19(1)(a) protects speech, even if it is offensive or contrary to the beliefs of the majority, speech can be restricted on the grounds listed in Article 19(2)[15]; therefore, freedom of speech must be exercised in an environment that does not arouse abusive or hateful sentiments and feelings. We thus have various laws preventing and prosecuting hate speech, including:
(i) General local provisions under the Indian Penal Code, 1860 where Sections 124-
A, 153-A, 153-B, 295-A, 298, 505 penalizes sedition promoting enmity, acting
prejudicial to national integration, outraging religious feelings, causing enmity, classes, many other laws[16] and various general international instruments.[17]
(ii) Special law relating to elections: The Representation of the People Act (RPA),
1951 where section 8 disqualifies one from contesting elections for illegitimate
use of freedom of speech and expression and Sections 123(3-A) & 125 prohibits
acts promoting enmity on the grounds of religion, race, caste, community or
language in connection with the election.
Even if revisions were made to the Representative of Peoples Act in an effort to restrict hate speech, it is still pervasive in India. In Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte,[18] the court noted that the distinction between 153A IPC and 123(3A) RPA is that “even the promotion of disharmony or ill-will between different groups of people is an offense under 153A,” whereas, under 123(3A), only the promotion or attempt to promote feelings of enmity or hatred are prohibited in the election campaign.[19]
In Pravasi Bhalai Sangathan v. Union of India[20], the court recognised the impact of hate speech made by influential people who are able to influence society as a whole. However, the court did not go beyond existing laws and refused to lay down any rule in order to avoid ‘judicial overreach.’ Instead, the court referred the issue to the Law Commission of India. In its report, the panel noted the need to further tighten and efficiently enforce the legislation and alter the Model Code of Conduct to effect Section 123(3-A) of the RPA, 1951[21].The author’s recommendations in this regard are as follows:
- The law of hate speech contained in the RPA must be made at least as stringent as the law contained in the IPC.
- New provisions must be added to make the law more specific in order to address political communication.
- The Model Code of Conduct must be incorporated into the RPA along with provisions for its actual compliance and penalties for its violation.
- Communal and Caste Politics
Constitutional secularism “bans the development of a theocratic state and prohibits the state from identifying itself as supporting any particular religion, religious group, or denomination.[22]” The Supreme Court ruled in the landmark case Abhiram Singh v. C.D. Commachen[23] that obtaining votes in the name of religion, caste, or community constituted a corrupt conduct. In Abhiram Singh v. C.D. Commachen[24], the court declined to provide Section 123(3) a narrow interpretation and ruled that the phrase ‘his’ must be understood widely and extended to the social, linguistic, and religious identity of the voter as well.
Section 123(3) of the RPA has a loophole that allows politicians to use religion to gain votes. Despite this, it is evident that stricter rules are necessary since politicians often use religion to get votes. The solicitation of votes on the basis of religion must be prohibited, regardless of the faith of the candidate.
- False and unfulfilled promises
Modern democracy is predicated on the idea that each candidate promises and outlines the advantages of electing him in his manifesto, and voters are supposed to choose the candidate whose manifesto they like the most.
This is a kind of political contract, with the promise to fulfil the manifesto in the future serving as consideration for election. If we apply the notion of contract law, these pledges made in the candidates’ manifestos must be binding on them after they have been elected. In addition, other concepts of contract law must also be applicable, such as the following:
- Impossible agreements must result in a void agreement.
- Contracts formed on the basis of fraud or false promises must give the voters the right to rescind the contract.
- There must be a provision to compensate voters for breaching such contracts.
In this respect, the Supreme Court ruled that election manifesto commitments do not constitute a formal contract since, in one way or another, they are consistent with official policy directives. Parties may profess to do miracles and even provide freebies, but they cannot be held accountable for influencing voters via false promises. The court decided that the law is clear that election manifesto pledges cannot be regarded as “corrupt behaviour” under Section 123 of the Representation of the People Act[25], but it cannot be ruled out that the distribution of freebies of any type impacts everyone.
No one can dispute that such pledges violate natural law. It is not permissible to mislead people by making unachievable promises. One cannot be expected to remain without recourse if contractual obligations are not met. Under cover of political speech freedom, engaging in unlawful and unethical behaviour is not permissible. In light of this, the Supreme Court recently directed the Election Commission to formulate guidelines for election manifestos in consultation with all recognised political parties and noted that “a separate head for guidelines for election manifesto released by a political party can also be included in the Model Code of Conduct for the guidance of political parties & candidates.[26]” However, no progress has been made on the ground, and parties can still claim anything in their manifestos, despite the Supreme Court’s directive.
A further remedy in this respect might be a “right to recall an elected representative for under-performance, corruption, or mismanagement while still in office by submitting a petition that triggers a re-election once a certain number of people sign the petition.”[27] Although the Law Commission is opposed to introducing the “Right To Recall” in any form[28], the Supreme Court endorsed the concept, stating that “big promises made by political parties in election manifestos should receive a legal sanction.[29]” However, the court refused to entertain a PIL, leaving the matter to the legislature for better adjudication in the people’s court. The court said that the judiciary was not the solution to all political system problems subject in order to preserve the democratic spirit of the elections. For this reason, both the obligatory binding of election manifesto pledges and the power to recall for non-fulfillment of such commitments must be examined.
- Promotion through Social Media
Section 126 of the RPA, 1951 stipulates a 48-hour period of electoral quiet. According to this clause, political campaigning in all constituencies must cease 48 hours before the election, and all party leaders and employees who are not registered to vote must leave the constituency[30]. However, the issue emerges when this regulation is enforced in the digital world through the internet and social media. As one of the nation’s leading cyber law experts, Pavan Duggal, told IANS, “receiving money for tweeting on behalf of political parties is immoral, but not criminal; the Information Technology Act, 2000 is quiet on this.”[31]
Keeping this deficiency in mind while hearing a case on January 12, 2019, the Bombay High Court requested proposals for keeping electoral quiet on social media. The Election Commission informed the court that it could not prohibit private citizens from making political remarks or postings in support of or in opposition to any political party 48 hours before election day[32]. The petitioner explained that all he wants is for social media companies to implement the same norms and policies as they do in countries such as the United Kingdom and the United States in order to cease receiving money from individuals for advertising sponsored commercials that are political[33]. The High Court said, “The EC has a constitutional commitment to run fair elections and should thus ban political adverts and sponsored material on social media.”[34] Facebook and Google in India informed the Bombay High Court that they are introducing new regulations for political adverts before the general elections to avoid foreign interference.[35]
Consequently, it is imperative that the rule of ‘election silence’ be extended to the digital world, and in a recent development, a committee formed by the Election Commission has sought amendments to the law to prevent social media and other digital platforms from conducting political advertisements 48 hours before elections.[36]
- Anti-Defection law and Compulsory Speech
As voting may be seen as a form of expression[37], Article 19(1) can also be interpreted as guaranteeing the right to vote. Elected representatives of the people should have the freedom to vote and choose and make laws for which they have been elected, but the anti-defection law restricts this freedom. Paragraph 2(1) of the Tenth Schedule of the Indian Constitution states that “a member of Parliament or State Legislature belonging to any political party shall be disqualified from continuing as such member if he votes or abstains from voting in the House contrary to the instructions of his political party.”
Although the purpose of the Tenth Schedule is to “prevent the breach of faith of the electorate,”[38] it is only logical that a candidate should be recalled for betraying the electorate’s faith if, after being elected, he leaves his political party or acts against its policies. This appears to be an unjust and unreasonable restriction on their freedom of speech and expression, as it gives undemocratically appointed political party leaders the authority to determine how a democratically elected candidate’s vote will be expressed during the making of laws and conducting of business in parliament.
- Data mining – Social monitoring
In response to the most recent technological advancement, politicians and political parties are developing an influx of applications and websites that allow the public to engage with them. There are suspicions that political parties construct applications under the pretense of these social media links to gather and harvest data from app users. These applications are used to monitor the activity of app users in order to build political campaigns that are voter-specific and not of a broad nature in order to influence them.
The study of data indicates which social and economic issues are on the rise, and then a campaign is developed based on these results. Christopher Wylie, a whistle-blower who exposed Cambridge Analytica’s role in a data breach affecting 50 million Facebook users, tweeted documents indicating that the firm’s parent company, Strategic Communications Limited (SCL), conducted behavioral research and polling for at least six state elections in India between 2003 and 2012, including the 2009 national election.[39]
This is an obvious invasion of an individual’s privacy and a hijacking of electoral democracy, and it must be stopped. This practice of achieving uneven status in elections by influencing voters with money and resources must be halted.
CONCLUSION
The most pressing requirement is to establish clear guidelines for political discourse so that it is not subject to the whims of the candidates. The Election Commission is responsible for conducting free and fair elections, which is part of our constitution’s fundamental framework. There must be explicit legislation granting the Election Commission certain authorities.
Also required is a specific definition of the phrase’ political communication’ It is difficult since perception and the definition and meaning of the word’ political communication’ are very subjective. The legal void in defining the phrase in terms of power, accountability, and legal process contributes to ambiguity and misunderstanding.
When it comes to the execution of principles of free and fair elections on the ground level, both (the ‘Executive’ and ‘Legislative’ wings of the State) are interested parties with a vested interest in the conduct and outcomes of elections. As a result, they pose obstacles and are resistant to electoral reforms, which is why the majority of electoral reforms in India have resulted from judicial decisions on PILs filed by citizens. Instead of enabling the Election Commission via statutory legislation, the authors argue that a constitutional amendment should enable the Election Commission by modifying the chapter on elections and then attaching a schedule to the constitution outlining the powers. In addition, the Election Commission must be granted substantial authority to create and enforce regulations independent of legislative and executive intervention. Political communication is an ongoing phenomenon that is not exclusive to election season. In order to fulfil their role, the Election Commission and other agencies dealing with political communication must be authorized to be proactive regardless of the season.
[1] Denton R.E. and Woodward G.C. (1998), Political Communication in America, (New York : Praeger, ISBN 978-0275957834), 11
[2] Social media and freedom of expression – Telangana Today. https://telanganatoday.com/social-media-and-freedom-of-expression
[3] United Nations General Assembly Resolution, 217-A(III), 1948.
[4] The Constitution of India.
[5] Ibid
[6] Tata Press Ltd. v. MTNL, (1995) 5 SCC 139 : AIR 1995 SC 2438; See also Hamdard Dawakhana v. Union of
India, AIR 1960 SC 554 : (1960) 2 SCR 671.
[7] Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305; See also : Bennett Coleman & Co. v. Union of India,
(1972) 2 SCC 788 : AIR 1973 SC 106.
[8] Subhash Chandra Aggarwal v. Indian National Congress, 2013 SCC OnLine CIC 8915 : [2013] CIC 8047.
[9]Law Commission of India, Electoral Disqualifications, 244th Report, 2014.
[10] Law Commission of India, Reform of Electoral Laws, 170th Report 1999.
[11] “National Commission to Review the Working of the Indian Constitution”, Ministry of Law and Justice, accessed
July 14, 2019, <http://www.lawmin.nic.in/ncrwc/finalreport/volume1.htm>.
[12] Incal v. Turkey, Application no. 41/1997/825/1031 (1998).
[13] Azam Khan disqualified as an MLA after the jail sentence.https://www.newsbharati.com/Encyc/2022/10/29/Azam-Khan-disqualified.html
[14] S. Sivakumar, Press Law and Journalists, (Universal Law Publishing Co., Gurgaon, 2015), 11.
[15] Shreya Singhal v. Union of India, (2015) 5 SCC 1
[16] Protection of Civil Rights Act, 1955; Religious Institutions (Prevention of Misuse) Act, 1988; Cable Television
Network Regulation Act, 1995; Cinematograph Act, 1952; The Code of Criminal Procedure, 1973.
[17] The International Covenant on Civil and Political Right, 1966, (99 UNTS 171 (1966)); The International
Convention on the Elimination of All Forms of Racial Discrimination, 1966, (660 UNTS 195 (1966)).
[18] (1996) 1 SCC 130 : AIR 1996 SC 1113.
[19] Promoting Enmity On Grounds Of Religion Is A Corrupt Practice. https://countercurrents.org/2016/10/promoting-enmity-on-grounds-of-religion-is-a-corrupt-practice/
[20] (2014) 11 SCC 477 : AIR 2014 SC 1591
[21] Law Commission of India, Electoral Reforms, 255th Report, 2015.
[22] S.R. Bommai v. Union of India, (1994) 3 SCC 1 : AIR 1994 SC 1918.
[23] (2017) 2 SCC 629.
[24] Ibid
[25] “Pre-election Freebie Distribution Needs Regulation : Supreme Court”, Down to Earth, July 4, 2015, accessed July 14, 2019, <https://www.downtoearth.org.in/news/preelection-freebie-distribution-needs-regulation-supreme-court-41563>.
[26] “Freebies Promises by Parties Vitiate Election Process, Needs Regulation : SC”, Live Mint, July 5, 2013,
accessed July 14, 2019, <https://www.livemint.com/Politics/VjfXEgQPBTBsblzpIgOxoK/Freebies-promises-byparties-vitiate-election-process-needs.html>
[27] Law Commission of India, Electoral Reforms, 255th Report, 2015.
[28] Ibid
[29] “Promises in Poll manifesto not Legally Enforceable : Supreme Court”, The Times of India, September 29, 2015 accessed July 14, 2019, <http://www.timesofindia.indiatimes.com/articleshow/49146022.cms>.
[30] “Election Commission Issues Prohibition Protocol for 48 hours Before Punjab Poll”, The Economic Times, Feb 2, 2017, accessed July 14, 2019, <https://www.economictimes.indiatimes.com/news/politicsandnation/electioncommission-issues-prohibition-protocol-for-48-hours-before-punjabpoll/articleshow/56939881.cm
[31] “Influencers Manipulating Social Media, Indian IT Act Silent”, The Economic Times, February 20, 2019, accessed July 14, 2019, <https://www.economictimes.indiatimes.com/industry/media/entertainment/media/influencers-manipulating-social-media-indian-it-act-silent/articleshow/68083504.cms>.
[32] “Can’t Stop Political Comments, Posts by Private Individuals on Social Media : ECI to Bombay HC”, TimeNowNews.com, January 11, 2019, accessed July 14, 2019,
[33] “Sponsored Ads : Submit Suggestions on Regulating Paid Content on Social Media : Bombay HC Tells EC,
Petitioners”, Live Law, January 12, 2019, accessed July 14, 2019, <https://www.livelaw.in/newsupdates/sponsored-ads-submit-suggestions-regulating-paid-content-social-media-bombay-hc-ec-142052>
[34] “Take Steps to Prohibit Paid Political Content, Ads on Social Media : Bombay HC to EC”, Live Law, January 24,
2019, accessed July 14, 2019, <https://www.livelaw.in/news-updates/prohibit-paid-political-content-ads-onsocial-media-142373>.
[35] “Facebook, Google to Bring Rules on Poll Ads to Stop ‘Foreign Intervention’ ”, The Times of India, February 18, 2019, accessed July 14, 2019, <https://www.timesofindia.indiatimes.com/india/new-rules-forpoliticaladvertisements-on-social-media-facebook-google-tells-bombay-highcourt/articleshow/68049752.cms>.
[36] “Election Commission Seeks Ban of All Political Advertising on Social Media 48 Hours Before Polls”, AdAge India, January 30, 2019, accessed July 14, 2019, <http://www.adageindia.in/advertising/election-commission-seeksban-of-all-political-advertising-on-social-media-48-hours-before-polls/articleshow/67744379.cms>.
[37] People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399 : AIR 2003 SC 2363
[38] Law Commission of India, Electoral Reforms, 255th Report, 2015.
[39] “Whistleblower Claims Cambridge Analytica’s Partners in India Worked on Elections, Raising Privacy Fears”, The Washington Post, March 28, 2019, accessed July 14, 2019, https://www.washingtonpost.com/world/asia_pacific/whistleblower-claims-cambridge-analyticas-partners-in-india-worked-on-elections-raising-privacy-fears/2018/03/28/1168c04c-328a-11e8-b6bd-0084a1666987_story.html
Author: Rishang Singh
Juris Centre 