It need not be deterred by the difficulty of extending the model code of conduct to social media.
The media is suddenly abuzz with reports that the Election Commission (EC) is going to enforce the model code of conduct (MCC) on social media soon. The story has generated considerable public debate. The reaction is not unmixed,though there are certainly more naysayers. While this is indeed of significant interest,the truth is that the EC has not yet said anything on the subject. Even if there is a move to bring social media under the MCC,the EC has not yet spelt out what it is going to do. In such a situation,the buzz is either speculative or pre-emptive.
From my days in the EC,I can say that the subject of social media has indeed come up several times in the commissions deliberations,sometimes based on complaints. However,the time was not considered ripe for any intervention,without ruling out the possibility in future. We had noted the increasing use of social media by political parties and candidates,and wondered about the cost of the media and the nature of its contents,both matters of our concern.
The first concern was the money spent by candidates on social media through their campaigns. The law requires that every rupee spent on the campaign must be accounted for. This obviously includes the expenditure on different media,including print,electronic and outdoor. Among new media,we noticed an extensive and increasing use of SMS because of its instant reach. But no media comes free. If a candidate spends money on it,she is by law duty-bound to show it in the mandatory expenditure statements. Many candidates have suffered consequences,including unseating and disqualification,for not submitting the returns correctly. Does this amount to interference with the freedom of expression? Certainly not. The other concern was about the nature and content of the campaign,which is definitely under the scanner of the EC under the Representation of People Act,other laws and the MCC.
Social media such as Facebook,Twitter,YouTube,etc are now increasingly being used. And why not? They are,indeed,powerful media. Free speech is a legitimate concern,but so is the mischief that can be caused by the abuse of media. Some of the content is often so explosive that it can set the country afire. Peace and harmony can be destroyed.
What kind of control the EC may be attempting is a matter of speculation. The majority of opinion seems to be against any control. This opposition is based on the assumption that the media will be gagged and the freedom of speech and expression is under threat. This is an unfounded fear. The EC is a protagonist of the peoples right to information and free expression. If it comes out with any order on social media,it can only be with reference to political parties and candidates,and that too in the context of expenditure and objectionable content that violates the MCC. The EC does not,and will not,ever interfere with citizens right to free speech and expression. After all,it is not a custodian of public morality. The writ of the EC is confined to political parties and candidates.
The opposition to the anticipated EC action appears to believe that the right to free speech and expression is absolute. This is not the case. The same article of the Constitution,Article 19,which grants the right to freedom of speech and expression,also makes it subject to reasonable restrictions in the interest of the sovereignty and integrity of India,the security of the state,friendly relations with foreign states,public order,preserving decency,preserving morality,in relation to contempt of court,defamation,or incitement to an offence. And these are some of the major concerns of the model code of conduct. Many Supreme Court judgments have confirmed such restrictions.
Another question being raised is that technically,it will be extremely difficult,if not impossible, to enforce any restrictions on social media. Anonymity,pseudonymity and fake accounts indeed make violators particularly difficult to catch. However,difficulty in enforcement of a valid law or rule is no justification for closing ones eyes to it. There are innumerable difficult to catch malpractices the candidates indulge in,including distribution of liquor,cash and goodies,and the EC constantly tries to stop them,albeit with varying degree of success. When one fraud is discovered and checked,they come up with another modus operandi. Even if the EC cannot achieve total success,it at least makes it very,very difficult for political parties and candidates to indulge in these malpractices with impunity. This is vital for the conduct of free and fair elections.
It is necessary to consider a paradox in this case. If a candidate maliciously attacks his rival in print,on TV or in a public meeting,he is hauled up under various laws of the land,including the IPC,RP act,SC/ ST Prevention of Atrocities Act,etc,besides the MCC. But if he commits the same offence on social media,it is perfectly all right! That will be an anomalous situation difficult to justify. Another paradox is that if the EC shuts its eyes to blatant abuse of social media,it will be accused of dereliction of duty. This will be worse than being accused of an inability to control the menace fully.
Incidentally,the EC is not hostile to social media. At the time I was heading it,we toyed with the idea of using it for voter education. A massive campaign was planned and even the date was fixed for its launch (December 16,2011). However,a few days before that,Telecom and IT Minister Minister Kapil Sibals statement about the need to control incendiary material on social media led to such a massive furore that we decided the time was not opportune to venture into unknown territory. I myself,however,decided to get on Facebook and Twitter in my personal capacity. It has been a mixed experience. While I gave up Facebook as too time-consuming and intrusive,Twitter has been a great instrument of communication. I have been able to remove umpteen number of doubts and ambiguities of thousands of young people about the election process. It has also been a great source of information for me. Once,a timely tip-off from a follower about a siege of some journalists at the counting centre by an unruly mob of a political party in Uttar Pradesh helped me take immediate corrective action to rescue them from what was building up to be a bloody incident.
While this debate continues,it will be interesting to see what order the EC comes out with.
The writer is former chief election commissioner of India