The futility of poll gag orders

The filing of two first information reports (FIRs) against the Bharatiya Janata Party’s (BJP’s) prime ministerial candidate, Narendra Modi, for violation of electoral laws invites an interesting debate on the statutory provisions under which he has been booked—Sections 126 (1) (a) and (b) of the Representation of the People Act, 1951.

In the context of phased elections and a fluid media, these provisions are anachronistic. Section 126 (1) (a) prohibits public meetings in any polling area during a period of 48 hours ending at the conclusion of the poll. Section 126 (1) (b) prohibits the “display” to the public in any polling area, any “election matter” by means of cinematograph, television or other similar apparatus.

Election matter is defined as “any matter intended or calculated to influence or affect the result of an election”. An offence is punishable with imprisonment for a term which may extend to two years.

Modi, who was seen clicking a selfie holding up his inked finger with his party’s election symbol and addressing the media awaiting him outside the polling booth, has been booked under both sub-sections (1) (a) and (b).

The object of Section 126 is to allow the voter a breather, a few moments of quiet time away from the cacophony of the campaign juggernaut, to reflect over the available options before making a final choice.

Section 126, incorporated into the Representation of the People Act, 1951, by an amendment made in 1996, was well-intentioned. But it loses relevance, and is almost impossible to implement in the context of a general election held in phases across different parts of the country.

While it prevents a candidate from making a political speech or holding a rally in the constituency going to the polls on a particular day, it does not prevent him from making the same speech at another location. That speech may be accessible on television to viewers in the constituency. Such a political speech or telecast would not amount to a violation of Section 126 (1) (a) merely because it was made from a location other than the polling area.

Regardless of what part of the country goes to the polls at a given time, reportage on national television channels is accessible in any part of the country through the entire election month. Voters have access to country-wide television coverage of election campaigns even during the 48-hour cooling period in their area.

So a party leader who makes a televised speech, on polling day, exhorting say, Gujarati voters to vote for his party from a location in Maharashtra would not fall foul of Section 126 (1) (a). But if he were to make his address from a location in the polling area in Gujarat, he would.

Sub-section (1) (b) of Section 126 reads a little differently from sub-section (1) (a). Sub-section (1) (b) prohibits the “display” to the public of election matter by means of media such as television. This would mean that election symbols on display in say, Uttarakhand, where polls are a few days away, cannot be “displayed” on television in Gandhinagar within the 48-hour cooling period in Gandhinagar. Yet, this is done by much of the media with impunity.

In practical terms, it is virtually impossible to avoid doing so. Sub-section (1) (b) would also mean that a person displaying a lotus in his buttonhole, raising his hand, or brandishing a jhadu (broom, the election symbol of the Aam Aadmi Party) cannot appear on television if the programme is being televised in an area going to the polls on a particular day. All such persons and the television channel responsible for the telecast of the show would be liable to face prosecution under Section 126 (1) (b).

The other question that arises is, what is meant by “election matter”, an expression defined rather loosely in sub-section (3). Election matter is not confined to election symbols. Literally construed, an inked finger even sans the display of an election symbol may amount to election matter. Would a party leader photographed emerging from a polling booth, holding up an inked finger, leave any doubt in anyone’s mind which party he or she has voted for and wants others to vote for? Even that, literally construed, may amount to a display of election matter punishable under the law.

Even after the news of the FIRs against Modi was out, television channels and newspapers alike, showed no hesitation in displaying the very images which were the subject matter of the FIRs. Will all those TV channels and newspapers also become punishable for violating Section 126 (1) (b)? A literal construction of Section 126 would so mandate.

Section 126 deserves a re-look by Parliament in the light of two factors: First, the fact that the general election in India is conducted in phases, spanning over a month. Second, the instantaneous reach of the electronic media, including television and the social media, across the length and breadth of the country, which render local prohibitions redundant. The ground realities have rendered the provision an exercise in futility.

Madhavi Goradia Divan, author of Facets of Media Law, is an advocate practising in the Supreme Court of India.