"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.
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