Election Commission in the age of social media

Democracy, in essence, is mandate from the public, but new-age election results are decided from digital war rooms, i.e., tech-savvy teams hoping to generate “Pidi”-like traction. After the 2014 general elections, all state elections have been won and lost on social media wherein strategists are commanding high fees for big data analysis for political masters. The hustle and bustle of elections through social media and huge cash flows despite demonetisation is all in the public domain, yet, the Election Commission (EC) appears to be a sleeping watchdog. It was upon my representation in 2013 that the EC issued its instructions by which electoral laws apply to social media in the same manner as print and electronic media, but its non-implementation has tarnished the Commission’s credibility.

Social media has become such a powerful tool to gauge public opinion, that before the UP assembly elections BJP asked each person to have at least 25,000 likes on Facebook, to be even eligible for seeking a ticket. BJP won Maharashtra and CM Fadnavis is now planning for 90,000 WhatsApp groups at the state level to continue the party’s stronghold in the state. BJP wants to repeat its success in the Himachal and Gujarat Elections through the mojo of social media. Congress, though a latecomer has now heightened its social media game in a bid to win over Gujarat. Humour and wit seem to be the Congress’s arsenal and its digital war room-made vikas has gone crazy. Since May, the Congress Twitter handle has grown from 20 lakh to 29 lakh followers, and Rahul Gandhi’s followers’ list has grown to 41 lakh. All of this obviously comes at a price.

Giving false information to the EC is an offence as per S. 125-A of the RP Act, as well as S. 177 of the IPC, but such powers are rarely enforced in campaigns through social media. In the 2014 general elections, the social media advertising budget of various political parties was pegged to be around Rs 10,000 crore. Yet, only five Lok Sabha MPs, none of them belonging to BJP, have declared expenses with regard to social media. In Delhi’s 2015 Assembly elections, only three candidates from BJP, two from AAP and four from Congress mentioned their expenditure towards social media.

Political advertisements are meant to be a strictly controlled legal affair as mandated in S. 127A of the RP Act and S. 171H of the IPC. In order to gauge the expenses made by candidates and parties, the Supreme Court in 2004 had directed that all political advertisements be pre-certified by the EC. With time, the EC incorporated the technological advances and included radio jingles, bulk SMSs/voice messages within the ambit of election advertisements. The spirit of the 2013 Instructions was negated by EC itself, when it adopted a restrictive definition of advertisements by its 2014 order wherein social media content is now not treated as political advertisements and, therefore, would not require pre-certification.

In the New India, the voting pattern and big data analytics hold the potential for removing election pundits from TV debates. The threat posed by social media advisors is such that a senior journalist was arrested at midnight for keeping a CD of a state minister, even as the sleaze content was already available in WhatsApp groups. Fake news is being fed on social networks, hence, every instance of a “promoted post” becomes an actionable case for ‘paid news’. Election Commissioner OP Rawat has stated: “It has come to the notice of the commission that paid operators run by PR firms are being actively deployed to shape public opinion online”. The EC, which has deemed rate cards for expenses on tea and flowers, has failed to obtain tariff cards for social media advertisements and quantify the total expenses by political parties through their digital armies.

In Consultation on Social Media, a meet organised by the EC in December 2015, it was decided that the EC would have more online presence. Social media companies are having their own tryst with laws as their representatives were grilled by the US Congressional Committee on the issue of Russians meddling with US presidential elections. Once desirous of teaming up with Google, EC aborted the prospective partnership due to security concerns.

Under Article 324, Election Commission of India may conduct forensic audit of social media companies, which is bound to reveal the rot of black money in the political system and how it is used to subvert democracy.

It was the strict interpretation of the election law by an upright judge that led to the disqualification of the then PM Indira Gandhi as MP. Free and fair elections are a hallmark of a democracy and an ineffective constitutional body surely cannot ensure the same. The “real world” of EC is distant from the “virtual world” of electoral campaigning. As per October 2013 instructions, campaigning through social media cannot be done in the last 48 hours before voting, whereas in reality, the real thrust is in the same period. It is now for the EC to redeem itself and deal with the upcoming elections in a manner which restores election laws to their true glory.

The author is a Supreme Court lawyer and an expert in Constitutional affairs. Views expressed are personal.