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Beyond Congress-BJP noise, what does the law say on poll code’s violation?

Section 126 of the Representation of the People Act, its implications, and how it has been used so far.

Written by Ritika Chopra |
Updated: December 15, 2017 7:46:43 am
Prime Minister Narendra Modi in Ahmedabad on Thursday. (Express Photo: Javed Raja)

Both BJP and Congress have accused each other of violating the Model Code of Conduct and Section 126 of the Representation of the People Act, 1951 — the BJP pointing to Rahul Gandhi’s interviews to TV channels during the 48-hour period before polling; the Congress accusing Prime Minister Narendra Modi of violating the same provisions by holding a ‘roadshow’ in Ahmedabad after casting his vote on Thursday.

What is Section 126 of the Representation of the People Act, 1951?

Election campaigns are expected to be run within the limits of the law and provisions of the Model Code of Conduct (MCC). Section 126 of the R P Act is one such important limitation. The provision originally prohibited organising, attending and addressing public meetings or processions in the 48 hours preceding voting. In 1996, its scope was expanded — it now also prohibits display of “election matter by means of cinematograph, television or other similar apparatus” and the holding of musical or theatrical performances or entertainment programmes with the intention of influencing voters 48 hours ahead of voting. Violations can be punished with a prison term of up to two years or a fine, or both.

Also Read: Story of poll code violations, despite several complaints, many notices, little action

What’s the rationale behind the section?

The 48-hour period is known as that of ‘election silence’. The idea is to allow a voter a campaign-free environment to reflect on events before casting her vote. ‘Election silence’ is also implemented in Nepal, Pakistan and the UK, among other countries. The period of silence, however, differs from one country to another.

What does Section 126 say on election-related public meetings, processions, press conferences and interviews outside poll-going seats during ‘election silence’?

The provision does not prevent a candidate, politician or political party from holding public meetings and processions, organising a press conferences or even giving media interviews outside the constituencies which are about to vote. This is why, in a multi-phase Assembly election, politicians continue to campaign in those parts of the state that are not going to polls in the next 48 hours.

But what happens when TV channels telecast such events, interviews or press conferences in poll-going areas?

Indeed, the purpose of ‘election silence’ is defeated when channels air election rallies or the campaign at a seat that is about to vote. But Section 126 doesn’t empower the Election Commission (EC) to act in such cases. In fact, it is often insinuated that political parties exploit this legal loophole by holding big events, such as a manifesto release or a press conference, outside poll-going constituencies, knowing full well that these would be broadcast everywhere.

The EC had, in fact, approached the Ministry of Information and Broadcasting to enquire if it would be possible to block transmission signals in a state or a part of a state. The government said it was unimplementable.

In 2014, during the Lok Sabha elections, the EC sought legal opinion from former Attorney General Ashok Desai on whether the penal provisions of Section 126 could apply to an election-related event held outside the limits of a constituency that was about to vote. Based on the advice it received, the EC decided that Section 126 would apply only if the election matter being broadcast via electronic media related to a specific constituency or candidate about to go to the polls. General discussions would not attract the penal provisions under Section 126.

How has the EC dealt with similar complaints in the past?

To understand the scope of Section 126, let us take the examples of two cases the EC dealt with during the Lok Sabha elections in 2014. On April 24, 2014, the Congress objected to the telecast of Narendra Modi’s roadshow in Varanasi, just before he filed his nomination, even as voting was underway in 117 constituencies in 11 states and one Union Territory for the sixth phase of the election. The EC did not act in this case as the roadshow was held outside the poll-going areas and also, the event was not related to a specific constituency or candidate about to go to the polls.

On April 30, 2014, Modi held a press conference near a polling booth in Gujarat right after casting his vote and also displayed his party symbol — the lotus — prominently. This time, the EC did not wait for a complaint and ordered an FIR against Modi, who was then the BJP’s prime ministerial candidate. “This was a clear violation of Section 126. The Commission watched the press conference live and felt it amounted to campaigning. Since it was held in the poll-going area, an FIR was ordered,” a former officer of the Election Commission said on condition of anonymity.

What about party manifestos released during ‘election silence’ and political advertisements that appear in newspapers on the day of voting? Aren’t they covered under Section 126?

No, they are not. The law and the MCC do not specify when a manifesto can be released. Even print advertisements and political pamphlets are not covered under Section 126. In other words, advertisements by political parties can be published in newspapers during the 48 hours ahead of voting.

However, during the Bihar Assembly elections in 2015, the EC introduced compulsory pre-certification of print advertisements as certain ads with communal and offensive content were carried in newspapers. The EC, in 2016, had urged the government to include print advertisements within the scope of Section 126, but that seems to have not found favour with the government.

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