Since the run-up to the elections for the five state assemblies four months ago, we have seen the emergence of a variety of colourful political advertisements on the TV.  But recently, the Election Commission (EC) had, very curiously, ordered that paid political advertisements should not be aired on cable and satellite TV channels.

The political parties cried foul and blamed the EC for improperly denying them the opportunity to employ the TV to spread their message among the public.  The EC emphasizes that its order is not arbitrary.   But who is right?  We need to analyze this issue carefully and correctly.  So, let us join a ‘crash course’ in electoral, cable TV and constitutional law.   Here we go:

The government’s own rules as given by the Rule 6 (Clause 3) in the Cable Television Network Rules (1994) prohibit the airing of any paid advertisements (i.e. commercials) that are of religious or political nature.   And, Section 7 of the Cable Television Network Regulation Act of 1995 passed by the Parliament enjoins all commercials shown on paid television channels (i.e. excluding free-to-air channels) to be on the correct side of the above rule.  To this narrow extent, the EC is probably right in pointing fingers at the government and the Parliament.

Yes, you guessed it right, there is also the other side of this case:  The 1951 Representation of the People (PR) Act was amended by the Parliament through the Election and Other Related Laws (Amendment) Act of 2002.  Section 39A of this amended act clearly states that the Election Commission shall allot political parties equitable sharing of time on the cable television network and other electronic media, based on their past electoral performances.   The parties can use the time allotted, in a prescribed manner, to display or propagate any election matter or to address public in connection with an election.   Even a preliminary reading of this amendment act makes it clear that paid political advertisements are not forbidden from being aired on cable television channels.   Forget banning, the law talks about EC ensuring that TV time is actually given to the parties during elections!

Let us now come to a more fundamental issue:  India is a democracy.  And the degree to which parties and candidates can freely and openly discuss their political views is an important indicator of the well-being of our country’s democracy.  In fact, this principle is enshrined as a fundamental right in the Article 19 1(a) of the Indian Constitution that guarantees every citizen the freedom of speech and expression.  Expressing political opinion through commercials in newspapers, radio, television or other electronic media certainly falls under this category.  Already, we have been permitting paid political ads to be published in newspapers, since decades.  Then why should they now be excluded from the television?

The political culture of the earlier generations was defined by mass public rallies and gatherings where political leaders personally delivered lengthy speeches to a captive audience.   However, few voters of today are genuinely influenced by such massive political rallies.  It is therefore not at all surprising that, since the past few years, such political rallies and gatherings have been reduced a farcical contest of numbers, which uninterested people are routinely bribed or forced to attend. While they might capture temporary media or public attention, it comes at a disproportionately high cost to the party in terms of valuable financial resources, time and thought that goes into organizing such massive public gatherings.

It is here that Cable TV networks and other electronic media (the Internet and the radio) are potentially the most effective and promising vehicles for mass communication.   For a political party or candidate, they are not just a cost-effective campaign option but also offer a much wider reach that simply cannot be matched by any other means.  While some political parties seem to have realized this paradigmatic shift in the nature of electoral campaign, this fact might have escaped the Election Commission’s notice.

Now that we have examined the key facts, let us drive the point home: during the 1999 election season, the AP High Court struck down EC’s order banning the airing of political commercials on TV.  It simply does not seem appropriate for it to issue a similar order now.  At the same time, we should not forget that the government’s own rule banning political ads on TV channels not only goes against the Section 39A of the PR (amended) Act but also violates both the letter and spirit of the Article 19 1(a) and is therefore clearly unconstitutional.  The solution lies in:

1. Rectifying the unconstitutional Rule 6 (Clause 3) of the existing cable television network rules and

2. Framing new cable television network rules that confirm to the Constitution’s fundamental rights as well as Parliament’s PR Amendment Act (i.e. Section 39A).

That just about sums up our case.  Our arguments would have done Perry Mason proud!

Once the TV time allotment rules are in place, the political parties and the cable TV networks should explore options to utilize this time for interesting and meaningful political programs, which the viewers find attractive.  The operative words here are: interesting and attractive.  Dull political speeches by party functionaries, boring propaganda visuals or shouting contests between contestants - all have the potential to alienate the viewers faster than you can say ‘unconstitutional cable TV rule’!