dir="ltr">The recent enforcement of a ban on political advertisements on television raised some controversy. The Election Commission (EC) and the Union Government are busy throwing blame on each other for this ban. Irrespective of who is right, or wrong, this ban raises several fundamental questions about our democracy and nature of political campaigning. We need to address and resolve them speedily.

The EC contends that the Cable Television Networks (Regulation ) Act, 1995 contains provisions which ban advertisements by political parties. As long as the statutory provisions exist, the EC’s argument goes, the Commission has the duty to enforce them. There are three legal provisions existing today which have a bearing on the issue. Let us examine them and put things in perspective.

First, Section 6 of the Cable Television Networks (Regulation) Act, 1995 states as follows: “Advertisement Code: No person shall transmit or retransmit through a cable service any advertisement unless such advertisement is in conformity with the prescribed advertisement code, provided that nothing in this section shall apply to the programme of the foreign satellite channels which can be received without the use of any specialized gadgets or decoder”. The intent was obviously to regulate advertisements which may be against national or public interest. The proviso regarding foreign satellite channels is more a recognition of the state’s limitation in the face of technological advances. There is nothing the government can do to control the signal sent by foreign channels, short of jamming them – an expensive, technically difficult, and illiberal proposition.

Second, clause (3) of Rule 7 of Cable Television Networks Rules, 1994 (as amended up to 2000), states: “No advertisement shall be permitted, the objects whereof are wholly or mainly of religious or political nature; advertisements must not be directed towards any religious or political end”. The EC is citing this rule, as the law says that any advertisement must be in conformity with the ‘prescribed’ advertisement code. The legality of such a rule imposing a blanket ban on political advertising in an open and constitutional democracy has not been examined. In other words, the bureaucrats in government make rules blindly, and the EC enforces those rules routinely.

Curiously, there is a third legal provision which explicitly mandates that time should be allocated to parties on television. Section 39 A of the Representation of the People Act, 1951, incorporated through the Election and Other Related Laws (Amendment) Law, 2003 states: “Notwithstanding any thing contained in any other law for the time being in force, the Election Commission shall, on the basis of the past performance of a political party, during elections, allocate equitable sharing of time on the cable television network and other electronic media in such manner as may be prescribed to display or propagate any election matter or to address public in connection with an election.”  Note that the law supercedes all other laws; the EC ‘shall’ allocate equitable time; the time is meant to ‘display’ or ‘propagate’ or to address the public; and the allocation of time shall be in the manner ‘prescribed’ by rules. The law also states that this allocation of time shall be made after the publication of list of contesting candidates. This very healthy and progressive provision is ignored both by the government and EC. The government did not make rules to implement this provision, and the EC is not particularly proactive in enforcing it. However, a mindless rule which prohibits all political advertising is invoked to stifle freedom of speech in a democracy.

Let us now examine the constitutionality of the rules imposing a ban on political advertisements. Article 19 (1) of the Constitution guarantees freedom of speech to all citizens of India. This right can be abridged under Article 19(2) only on eight grounds in the interests of sovereignty and integrity of India; the security of the State; friendly relations with foreign states; public order; decency or morality; in relation to contempt of court; defamation; or incitement to an offence. The ban on political advertisement does not satisfy any of these conditions, and is a clear violation of our fundamental rights.

An argument is advanced that small parties cannot afford TV advertisements, and therefore all parties should be denied access to television. This is a preposterous argument. First, it violates freedom of speech. Second, the parties spend exorbitant, unaccounted sums now to organize ‘rent-a-crowd’ public meetings, display banners, posters and cut-outs, and directly reach the voters. Denying parties access to television is only driving the expenditure under-ground, and makes our elections more murky. Third, the law (section 39 A of RP Act) mandates free airtime to recognized parties on private and public channels. Instead of utilizing this opportunity to improve the quality of public debate and transform the nature of election campaigns, we are perpetuating a medieval, caste-based, ugly system of political mobilization.

Many sensible politicians and media in the US have been valiantly struggling to improve campaign finance, and yet the US situation is messy. Corporate contributions are prohibited, and individuals can donate only limited amounts. There are no tax exemptions to donors. Television time costs a fortune. Parties and candidates are exploiting the loopholes like PACs, soft-money and issue advocacy. Even Senator McCain’s valiant and electrifying bid for presidency in 2000 offering campaign finance reform did not alter the landscape. The recent McCain-Feingold law is at best a feeble attempt to improve the situation. In contrast, the recent Indian law enacted in September 2003 by unanimous consent in both Houses of Parliament on political funding is one of the most progressive laws of its kind in any democracy. All legitimate funding needs of the political parties for campaigning are addressed in this law. Donors get full tax exemption; disclosure of  contributions is mandatory; earlier loopholes are removed, and expenditure by the party or others now comes under the ceiling purview; and free broadcasting time is provided to recognized parties. A similar law would at once resolve all the funding dilemmas in the US. In India, we are squandering a priceless opportunity, and quibbling over trivia. What we need is a grand vision backed by practical steps to cleanse our elections and strengthen democracy, not nitpicking.