It seems the Election Commission of India is the only body in the country that is seriously trying to combat the pernicious practice of "paid news". If other organizations, including organizations that claim to represent the interests of journalists and other media professionals, played a more proactive role in curbing this corrupt practice, the phenomenon of masquerading advertisements as news could be curtailed to some extent. This is unfortunately not happening at a significant pace.
On 3 December, Vijay Dev, the Chief Electoral Officer of the country's capital said the Election Commission would be recommending action against at least six candidates, including the outgoing Revenue Minister in the Delhi government Arvinder Singh, for not disclosing the amounts they paid for planting "news" reports in publications in the run-up to the elections in their expenditure statements.
The Commission had calculated the amounts spent by these candidates on "paid news" and if their total expenditure on campaigning was found to be exceeding the statutory ceiling of Rs 14 lakh per candidate, they could be disqualified even if they are elected as members of the legislative assembly.
Whereas the six candidates were named -- besides Arvinder Singh, the others were Sushil Gupta (Congress), Neel Daman Khatri, Jai Prakash (Bharatiya Janata Party), Mohammad Saleem Saify and Dheeraj Kumar Tokas (Bahujan Samaj Party) -- Dev chose not to disclose the names of the publications that had allegedly received funds for publication of so-called paid news.
The Commission had reportedly received 60 complaints of paid news from its media certification and monitoring committee and served show-cause notices on 28 candidates; including the six named whose replies were apparently not found sufficiently convincing by the Commission's officials. All six reportedly denied having paid money for publication of favourable news items. The amounts ranged between Rs 4,893 (Jai Prakash, Sadar Bazar) to Rs 18,019 (Dheeraj Kumar Tokas, R. K. Puram).
Dev said 24 more notices are expected to be issued. He added that the Election Commission would be interacting with the Press Council of India in the cases relating to the print medium and the "appropriate" body for complaints against television channels, presumably meaning the News Broadcasting Standards Authority, the ethics panel of the self-regulatory body of certain leading television news channels, the News Broadcasters' Association.
Earlier, Akshay Rout, Director-General in the Election Commission had gone on record stating: "There is plenty of circumstantial evidence but no clinching evidence when it comes to paid news. Even though the level of intelligence is rising on paid news we will strengthen our fight against it... The Commission believes that self-regulation of the media is the answer... Any report that comes through from media about violations in the model code of conduct will be taken up suo motu as a complaint..."
He was quoted by the Hindu (September 23, 2013) claiming that as much as 40 per cent of all election expenditure of political parties relates to media. Rout appealed to the media to follow Section 126 of the Representation of the People Act, 1951 which "prohibits displaying any election matter by means, inter alia, of television or similar apparatus, during the period of 48 hours before the hour fixed for conclusion of poll in a constituency". (Incidentally and curiously, this restriction does not apply to the print medium.)
"Paid news" in India and others parts of the world essentially emanate from the fact that much of the mass media is dominated by corporate conglomerates that are primarily interested in maximization of profits. The "fourth estate" in the world’s largest democracy often emphasizes commercial considerations rather than search for the truth and hold accountable those in positions of power and authority.
The independence of the media and its ability to bring about transparency in society by playing an adversarial role against the establishment get compromised because of corruption within the folds of the media itself. Paid news is one particularly egregious manifestation of the ills of the corporatized media that puts out information that poses as if it has been independently and objectively produced but has actually been paid for.
Paid news on politicians and political parties subvert one of the most fundamental of democratic ideals: the purity of the vote. The autonomy of the media is meant to facilitate greater accountability of public personalities and reduce corruption. But when the media itself indulges in corrupt practices, especially during election campaigns, it seriously undermines the processes and structures that are meant to uphold and strengthen democracy.
The Election Commission's October 2011 order on Umlesh Yadav, the first ever sitting member of a legislative assembly to be disqualified for her failure to record expenditure incurred on advertising during her election campaign which is legally mandated, is illustrative. Yadav, who was disqualified as an MLA under section 10A of the Representation of the People Act, had been elected from Bisauli, Uttar Pradesh, in 2007 on a ticket of the Rashtriya Parivartan Dal. She was unable to complete her term and was banned for three years from seeking re-election as well.
This case set a precedent and represented a major breakthrough towards an effective legal response to the paid news problem in electoral politics. It also represents an instance of the Press Council of India (PCI) and the Election Commission working together, with the former having forwarded its findings in the case to the Election Commission for appropriate action. The latter, on its part, articulated the full extent of the damage paid news did, while holding Yadav accountable.
The Commission opined that "by suppressing expenditure on ‘paid news’ and filing an incorrect or false account, the candidate... is guilty of not merely circumventing the law relating to election expenses but also of resorting to false propaganda by projecting a wrong picture and defrauding the electorate."
In response to a challenge to the Election Commission’s findings, the Allahabad High Court on 3 May 2013 upheld the Commission’s finding as fully consistent with the law and has cited clear precedent in the law laid down by the Supreme Court in L.R. Shivaramagowda versus T.M. Chandrasekhar. This case saw the Supreme Court rule that, in addition to checking whether accounts had been duly lodged, it was fully within the Election Commission’s powers to check to see if "true and correct" accounts of expenditure incurred or authorized were provided by candidates.
However, the Umlesh Yadav case did not result in any indictment of the newspapers that had printed advertisements about her (namely, the Dainik Jagran and Amar Ujala). The PCI was able to identify the content as paid for because: "The format of the impugned material was such that it would appear as a news report to the layman and the word (sic) 'ADVT' printed at the lowest end rather appeared to accompany a small boxed appeal by the candidate."
The concerned newspapers, in this instance, had protected themselves against claims that what had been printed had not been paid for. Much of paid news is, however, far less overt. Subtle and not-so-subtle attempts are made to "commission" journalists to write articles that favour a particular candidate or discredit his opponent. In the absence of real investigative powers with the PCI, including powers to conduct search and seizure operations, it is extremely difficult (and often impossible) to track illegal transactions in cash or kind.
The real difficulty in curbing the phenomenon has been summarized thus by the Ministry of Information and Broadcasting to the Parliamentary Standing Committee on Information Technology headed by Rao Inderjit Singh (in its report presented in May 2013): "Though there is a well established procedure to take action for such violations, the problem is to establish the violation itself per se. There are so many different ways which can be adopted towards obliging the (newspaper and television) channels financially that it is extremely difficult to establish a violation in this regard."
In other words, paid news is difficult to identify through a search for any fixed set of parameters alone. Black money (which is also notoriously hard to tag or track) is very often involved in paid news. For this and other reasons, the inherent deception involved in passing off advertisements as news entails a clandestine activity. Its occurrence, thus, can be reliably established by only its participants and that too by acknowledging that they are guilty of violating various laws, including those relating to fraud, deception, election of representatives of the people and non-payment of taxes.
It is easy to dismiss the paid news phenomenon as simply another occurrence of corruption that is so ubiquitous in India. In the case of the former Chief Minister of Maharashtra Ashok Chavan, it has been alleged that a number of articles promoting his candidacy appeared in various newspapers in the garb of "news" before the October 2009 state assembly elections. He, however, refuses to admit that he or his associates have had anything to do with the publication of these articles. His response has been to attempt every possible evasion of a proactive Election Commission’s jurisdiction to address the issue.
P. Sainath, Rural Affairs Editor at the Hindu reported on the problem as it manifested itself on the eve of October 2009 assembly elections in Maharashtra. He highlighted a series of complimentary reports on the then Chief Minister of the state. A total of fifteen separate editions of three large newspapers carried absolutely identical content as news reporting, with each newspaper attaching a different byline of its correspondent to it. The three newspapers in question, Lokmat, Pudhari and Maharashtra Times, were competitors. Contemplating the outcome of a legal suit between the three correspondents of these articles to determine who owns the copyright in the content may be hilarious, if it had not been for the sheer scale and audacity of the fraud that was perpetrated by this section of the Marathi language media.
Ashok Chavan won from the Bhokar assembly seat in Maharashtra’s Nanded district by a margin of over 1,00,000 votes. The expenses incurred on advertising during his election campaign which were officially declared by him worked out to only Rs 5,379 on newspaper advertisements and Rs 6,000 on cable television advertisements. To use Sainath's words, these amounts were supposed to have covered at least "47 full newspaper pages, many of them in colour, focused exclusively on Mr Chavan, his leadership, his party and government. These appeared in large newspapers, including one ranking amongst India’s highest circulation dailies..." In another article, Sainath referred to "scores of hagiographic full pages of 'news'." In none of these pages was a single word printed about Chavan’s principal political opponent in the election, independent candidate Madhavrao Kinhalkar.
The Election Commission's attempts to inquire into the veracity of Chavan’s election accounts have been consistently opposed by his legal team. The attempts by his lawyers (among whom was Abhishek Manu Singhvi, member of the Rajya Sabha and spokesperson of the Indian National Congress) to challenge the jurisdiction of the Commission before a two-judge bench of the Delhi High Court failed. The Supreme Court is now considering the question.
Notwithstanding the clarity of apex court's ruling in the L.R. Shivaramagowda versus T.M. Chandrasekhar case, the Union government deemed it fit to submit an affidavit in the Supreme Court in the Ashok Shankarrao Chavan versus Madavrao Kinhalkar case in support of the former Maharashtra Chief Minister. The affidavit, submitted by the Law Ministry, effectively seeks to whittle down the powers of the Election Commission to question the veracity of the expenditure statements of a candidate contesting elections by claiming that the Commission had no powers to act in a "hypothetical" situation where a candidate knowingly submits a record of his accounts, but leaves all of the relevant particulars blank.
The silver lining in the Ashok Chavan case comes from proactive intervention before the Supreme Court by civil society organizations. In an intervention application in response to the government’s counter affidavit, a number of non-government organizations together with former election commissioners have argued that the government’s arguments would lead to perverse consequences if accepted.
But paid news is a more complex problem. Large sections of the corporate media have created a structural imperative towards such corrupt practices -- such practices entail negligible costs but promise potential and actual monetary gains that are substantial. Universally, rent-seeking, profit-maximizing entities will, as a general and even intuitive rule, act to increase returns rather than look at social externalities. But when the mass media adopts such corporate norms, in India and elsewhere, it sends a signal that it is willing to diminish or even abrogate its role as a protector of public interest and enforcer of accountability.
It is no surprise, then, that the paid news problem as an organized phenomenon appears rather intractable, involving as it does, lawmakers and politicians cutting across party lines and representatives of sections of the corporate media who coexist symbiotically. This nexus cannot be weakened easily. At the same time, in India, a more alert citizenry (including readers of newspapers and viewers of television channels) can and has made a difference in bringing the problem of paid news to the public domain.
In addition, sections of the country's mass media (some of which are on the fringes of the so-called "mainstream") have highlighted -- and will hopefully continue to highlight -- this corrupt phenomenon. Still, not all those named have been shamed. However, there is currently greater awareness of real and present dangers that paid news poses to Indian democracy.
This article too is intended as a step in that direction.
(Portions of this article have been excerpted from a chapter in the book titled Journalism: Ethics and Responsibilities edited by Seema Mustafa and published for the Prem Bhatia Trust by Har-Anand, 2013, that has been written by Paranjoy Guha Thakurta and Ujwala Uppaluri.)
