Section 126 of The Representation of the People Act, 1951, prohibits campaigning by candidates and parties in the 48-hour period ending with the scheduled conclusion of polling in an area. “Display to the public any election matter by means of cinematograph, television or other similar apparatus” is not allowed in these 48 hours — and as the second phase of voting approached, the Election Commission decided on April 16 to enforce this silence period with regard to NaMo TV.
The EC had said last week that the Chief Electoral Officer of Delhi had “confirmed… that there has not been any pre-certification of the content being displayed on NaMo TV/ Content TV”, and cited a direction given by the Supreme Court 15 years ago to underline that all political ads on electronic media need “pre-certification”.
The Commission has said that expenditure on programmes and ads on NaMo TV will be attributed to the BJP or its candidates, saying in effect, that everything on NaMo TV is BJP-sponsored advertisement. NaMo TV is available on all major DTH platforms, and is classified as a “platform service” paid for by the BJP. Despite the silence period having kicked in, the channel was available in several states on the eve of the April 18 vote.
Who ‘pre-certifies’ political ads that are aired on TV?
The Supreme Court, in Secretary, Ministry of Information & Broadcasting vs M/s Gemini TV Pvt Ltd & Others on April 13, 2004, directed that “advertisement of political nature on TV Channel or Cable Network” could be issued “only after obtaining necessary clearance from the (Election) Commission or the (EC’s) designated officer”.
Two days after the court’s interim order, on April 15, 2004, the EC directed that “for pre-viewing, scrutinizing and certifying advertisements to be telecast over TV channels and cable networks by any registered political party or by any group or organization/association, having headquarters in NCT of Delhi, the Chief Electoral Officer, Delhi is to constitute a Committee”. For parties or organisations headquartered in other states, the respective CEOs were to set up the committees. Each committee was to be headed by an additional or joint CEO of that state. Members include a Returning Officer from one of the parliamentary constituencies in that state’s capital, and an expert who is an officer “not below the rank of Class-I officer to be requisitioned from the Ministry of Information & Broadcasting”.
What is the procedure to get an advertisement certified?
Recognised political parties and candidates must apply three days before the ad is to be aired, but in the first phase, applications can be sent just two days in advance. Parties or candidates must submit two copies of the ad, its transcript, cost of production, and the approximate cost of the proposed telecast with the break-up of the number of insertions and the proposed charge for each insertion. The application has to mention whether the ad is for the benefit of a candidate or party.
A person of organisation other than the party or candidate, too can get political ads approved by the committees. However, applications by any other persons or by unregistered political parties must be made seven days in advance. Along with the details above, unregistered parties or other entities have to give an undertaking that “it is not for the benefit of the political party or a candidate and that the said advertisement has not been sponsored or commissioned or paid for by any political party or a candidate”.
Payments for ads, either by registered/unregistered political parties or anyone else, cannot be made in cash.
How did the matter reach the Supreme Court?
The landmark decision that led to the establishment of these committees specifically for political ads during the election period, when the Model Code of Conduct is in place, came on a challenge by the Ministry of Information & Broadcasting to an order of the Andhra Pradesh High Court that had stayed Rule 7(3) of The Cable Television Networks Rules, 1994, which prohibits religious and political ads on TV. The High Court order came in March 2004, weeks ahead of the first phase of polling for that year’s Lok Sabha elections. Section 7 of the Rules defines the Advertising Code; part 3 therein says: “No advertisement shall be permitted, the objects whereof, are wholly or mainly of a religious or political nature; advertisements must not be directed towards any religious or political end.”
After the I&B Ministry appealed, the Supreme Court asked the EC to suggest the modalities to allow such ads. The EC’s suggestions were shared with the Union government, which recommended minor changes. On April 13, the court ordered the setting up of the committees, setting aside the HC’s stay, and laying down the procedure to regulate political ads.
And who had gone to the High Court against Rule 7(3)?
Gemini TV, a Telugu channel, had approached the court saying that the Rule was impacting its business. Gemini TV is part of the Sun TV network owned by the Maran family of Tamil Nadu, which is closely related to the family of M Karunanidhi.
Gemini TV asked the court to declare “illegal, void, inoperative” the Rule regarding “political advertisements during General Elections and the consequential instructions” of the government “banning political advertisements through electronic media”. The ban, the petitioner argued, violated several articles of the Constitution — including Article 14 (equality before the law); Articles 19(1)(a) (freedom of speech and expression) and 19(1)(g) (right to practise any profession, or to carry on any occupation, trade or business); Article 19(2) (‘reasonable restrictions’ on freedoms of speech etc.); and Article 21 (protection of life and personal liberty).
What is the legal status now?
The Supreme Court had passed an interim order on April 13, 2004, but no subsequent orders or judgments were passed on this matter. The 2004 order, therefore, remains the law of the land, as is clear from the EC’s invocation of it this month.