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(2020) 10 GJLDP (October) 16
An Overview of Political Communication under the Freedom of Speech and

Expression
AN OVERVIEW OF POLITICAL COMMUNICATION UNDER THE FREEDOM OF SPEECH AND

EXPRESSION
by
Anil Kumar Thakur* and Krishan Kanha**
ABSTRACT
The freedom of speech and expression is the essence of any civilized state which
claims to be democratic in its spirit and ethos. This freedom of speech and
expression plays an important role in the electoral democracy for voters as well as
the politicians and political parties. Although, in India, freedom of speech and
expression of political parties is not recognized separately, but as is the case with
the press, this freedom emerges from the freedom given to every citizen under
Article 19 of the Constitution of India. The political parties use this freedom of
speech and expression to appeal to voters by promising voters various benefits of
electing them, to criticize the ideas and policies of their opponents and give an
insight into the vision and plan they have devised for their fellow citizens. The
political communication is also controlled by the clause 2 of Article 19 as it imposes
various restrictions on freedom of speech and expression. Thus under the
cloak/garb of electoral freedom and the freedom of speech and expression,
politicians are neither allowed to do any illegal act nor are they allowed to commit
any offence or incite anyone to commit an offence. Even then there are numerous
allegations against the current political environment of country wherein the freedom
of political communication is used for the petty benefits of getting elected at the
cost of national interest. So the purpose of this paper is to analyse the legal political
situation in this regard with special reference to communal politics, hate speeches,
paid media/news and unfulfilled manifestos.
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1. INTRODUCTION
‘Political Communication’ can be termed as the role of communication in politics in
the form of speech delivered by a politician or interaction by a politician with the
voters in the electoral process. “It is the strategic use of communication to influence
public knowledge, beliefs, and action on political matters.”1 The important factor
making a communication ‘political’ is not the source of the message, but the purpose
and content behind it, it is a “purposeful communication about politics.”2
“It includes the production and generation of messages by political actors, the
transmission of political messages through direct and indirect channels, and the
reception of political messages.”3 This can be in formal or informal form, in public or
private venue and through mediated or unmediated medium.4
2. FREEDOM OF SPEECH AND EXPRESSION
The freedom of speech and expression is the right of an individual to express his or
her beliefs & opinions without any restrictions and by any means including speech,
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writing, gestures, signs, pictures or sculptures. It is a natural right, acquired by every
human being by birth. This freedom is also enshrined in Article 19 of the Universal
Declaration on Human Rights,5 and this is also reflected as a fundamental right in
Article 19(1) (a)6 wherein it says “(1) All citizens shall have the right (a) to freedom of
speech and expression; …”
3. RESTRICTIONS ON THIS FREEDOM
No right can be absolute in any democratic society and the same is also true about
the freedom of speech and expression. Therefore it has been ensured that this liberty
is not exercised in the violation of a reasonable restriction.
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That is why while Article 19 clause (1)(a) gives freedom of speech and expression,
clause 2 lays down various reasonable restrictions7 .
4. FREEDOM OF POLITICAL COMMUNICATION

The freedom of speech and expression as given under Article 19 is guaranteed by
the constitution to each and every citizen of the country, so a citizen by joining a
political party or by nominating himself for elections does not lose this right. The right
of freedom to speech and expression as available to politicians and political parties can
be exercised by them in the form of political communication. The Supreme Court in
numerous cases has recognized this right in favour of commercial units8 and press9
and similar reasoning applies to political communication. However, the court has also
held that “commercial speech’ that is deceptive, unfair, misleading and untruthful
would be hit by Article 19(2) of the Constitution and can be regulated/prohibited by
the state”; similarly if the freedom of speech is available to politicians and political
communication is covered under it, the various restrictions under Article 19(2) are also
applicable on this political communication.
5. WHETHER THE ALREADY EXISTING RESTRICTIONS ARE SUFFICIENT TO TACKLE THE
VICES ARISING OUT OF POLITICAL COMMUNICATION?
Political parties play a pivotal role in democracy and are “the life blood of the entire
constitutional scheme.”10 They “act as a conduit through which interests and issues of
the people get represented in Parliament,”11 hence political parties were declared as
public authorities by the Central Information Commission (CIC) in a case12 and in its
judgment the CIC quoted the 170th report of the Law Commission of India, which
stated:“It is the political parties that form the government, man the parliament and
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run the governance of the country.”13 Further in its judgment the CIC made reference
to various constitutional provisions under which political parties can be given rights
and held accountable for few obligations.14 At international level, the European Court
of Human Rights has also recognized that “the position of the author of the speech is
important in determining the legality of limitations imposed by the State”, thus
“interferences with the freedom of expression of a politician … calls for the closest
scrutiny on the court's part”.15
So despite the fact that political parties and politicians enjoy the same freedom as
is available to the citizens, there needs to be special laws governing this freedom of
political communication. The political parties cannot stand on the same footing as
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other individuals because they are special bodies, entrusted with higher power and
responsibilities towards the democratic spirit of the country. They are duty bound to
protect the constitutional values such as secularism, equality, fraternity, sovereignty,
democracy and federal character of the country.
The political communication is regulated in two fold manner firstly, this freedom is
restricted under Article 19(2), so all the general laws of the land restricting the
freedom of speech and expression of a citizen are very well applicable to the politicians
and the political parties. Secondly, for the political process, India has a special law
also under the name of Representation of the People Act, 1951. This law under various
provisions like Section 123 (Corrupt practices), Section 125 (Promoting enmity
between classes in connection with elections), Section 126 (Prohibition of public
meetings during period of forty-eight hours ending with an hour fixed for conclusion of
poll) and many more, control and restrict this freedom of speech and expression of
politicians and political parties.
Despite the presence of general as well as election specific laws, the problem of
violation of the restriction as specified under Article 19(2) is rampant in India. The
current laws are not sufficient to control and curb the vices emerging out of political
communication in the society. There is a vacuum of laws on some specific aspects,
especially those which are arising due to the rapid technological developments. One
particular aspect where
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laws are lacking is abuse of this freedom by the politicians and other representatives
of political parties. Most of the times, instead of communication being made by the
politician himself or the official spokesperson of the political parties, self-declared
representatives of those politicians and political parties make various statements.
Those self-declared representatives are either not authorized by the head, or even if
they are authorized, when question of responsibility comes, the heads shrug off their
responsibility.
6. ISSUES AND CHALLENGES ARISING OUT OF THE FREEDOM OF POLITICAL

COMMUNICATION DUE TO LIMITATIONS IN EXISTING LEGAL REGIME : FINDING A
SOLUTION
Although political communication is as old as the politics itself, its significance has
increased manifolds and going to grow with the passage of time. But as there is a
dearth of laws specifically dealing with political communication, a need has arisen to
deal with this emerging issue and its challenges. Here are a few of the issues,
concerns and problems relating to the political communication:
A. Hate Speech
Freedom of speech is the essence of a democratic society. Critical and dissenting
voices are important for a vibrant and thinking society. However political speeches
often assume a divisive tone in order to exploit social prejudices for electoral gains.”16
Although a speech, even if it is offensive or not according to the beliefs of the majority
is protected under Article 19(1)(a), but can be restricted on the grounds as mentioned
under Article 19(2),17 and thus freedom of speech must be exercised in an
environment which does not arouse any abusive or hateful sentiments and feelings.
That is why we have numerous laws prohibiting and punishing hate speech, such as:
(i) General local provisions under the Indian Penal Code, 1860 where Sections 124-
A, 153-A, 153-B, 295-A, 298, 505 penalizes sedition promoting enmity, acting
prejudicial to national-integration, outraging religious feelings, causing enmity,
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hatred and ill-will between
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classes, many other laws18 and various general international instruments19 .
(ii) Special law relating to elections : The Representation of the People Act (RPA),
1951 where section 8 disqualifies one from contesting elections for illegitimate
use of freedom of speech and expression and Sections 123(3-A) & 125 prohibits
acts promoting enmity on grounds of religion, race, caste, community or
language in connection with election.
Hate speech is still prevalent in India regardless of the fact that amendments were
made to Representative of Peoples Act to curb hate. This fact was highlighted in
Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte,20 where the court observed
that the difference in 153A IPC and 123(3A) RPA is that “even mere promotion of
disharmony or ill-will between different groups of people is an offence under 153A”,
while under 123(3A), only the promotion of or attempt to promote feelings of enmity
or hatred, are forbidden in the election campaign”.
Recognizing the impact of hate speech made by powerful people, who are
competent to influence society at large, the court in Pravasi Bhalai Sangathan v. Union
of India21 the court though did not went beyond existing laws, and refusing to lay
down any rule so as to avoid ‘judicial overreach’, referred the issue to the Law
Commission of India. The commission observed in its report that there was a need to
further strengthen and effectively implement the laws and amend the Model Code of
Conduct to give effect to the sub-section (3-A) of Section 123 of the RPA, 1951.22
So the suggestions of the author in this regard are : firstly, the law of hate speech
as contained under RPA must at least be made as stringent as contained under IPC,
secondly, news provisions needs to be added, making the law more specific so as to
deal with the political communication, and thirdly, there is a need to incorporate Model
Code of Conduct into RPA and make provisions for its actual compliance and penalties
for its violation.
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B. Communal and Caste Politics

Secularism is the basic structure of the Constitution that “prohibits the
establishment of a theocratic state and prevent the state either identifying itself with
favoring any particular religion, religious sect or denomination.”23 Delivering a
landmark ruling in Abhiram Singh v. C.D. Commachen,24 the Supreme Court held that
seeking votes in the name of religion, caste or community is a corrupt practice. Court
in Abhiram Singh v. C.D. Commachen25 refused to give the Section 123(3) a
restrictive construction and held that the word ‘his’ had to be interpreted broadly and
extended to the social, linguistic and religious identity of voter also.
Still there seems to be a need for stringent laws as one can clearly see politicians
using religion on a regular basis for seeking votes using the loophole under Section
123(3) of RPA. Asking for votes on the basis of religion must be banned irrespective of
the person whose religion is being used for such purpose.
C. False and unfulfilled promises
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The system of modern democracy works on the principle that each candidate
promises and lists various benefits of electing him in the Manifesto and the voters are
expected to choose the candidate who they like the most, based upon his manifestos.
This is a kind of political contract, where consideration for being elected is the promise
to fulfill the manifesto in future.
If we apply the concept of law of contract, these promises as mentioned under
manifestos of the candidates must be binding upon them, once the voters have
elected them. Furthermore, other concepts of the law of contract must also be
applicable such as : the impossible agreements must give rise to a void agreement,
contracts formed on the basis of fraud or false promises must give the voters a right to
rescind the contract and there must also be a provision to pay compensation for
breaching such contracts to the voters.
In this regards the Supreme Court had held that promises in the election manifesto
are by no means a legal contract because one way or the other they are in line with
the directive principles of state policy. Parties can
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claim to do wonders and even promise to give freebies, yet they cannot be held guilty
of corrupting the voters on account of false promises. The Court held that the law is
obvious and the promises in election manifestos cannot be construed as ‘corrupt
practice’ under Section 123 of Representation of People's Act,26 but this cannot be
ruled out that distribution of freebies of any kind, undoubtedly, influences all people.27
No one can deny that such promises are a clear violation of the natural law. One
cannot be allowed to deceive others by making false and impossible promises. One
cannot be expected to be remediless if the promises made under a contract are not
fulfilled. Under the disguise of freedom of political communication, one cannot be
allowed to carry on illegal and immoral activities. Hence, recently the Supreme Court
directed the Election Commission to frame guidelines for the same in consultation with
all the recognized political parties and observed that “a separate head for guidelines
for election manifesto released by a political party can also be included in the Model
Code of Conduct for the guidance of political parties & candidates,”28 but on ground
level there is no progress, and still parties can claim anything in their manifestos, this
position needs to be changed.
Another remedy in this regard could be a “right to recall an elected representative
for under-performance, corruption, or mismanagement while still in office, by filing a
petition that triggers a reelection usually after a particular percentage of people sign
the petition.”29 Although the Law Commission is not in favor of introducing the “Right
To Recall” in any form30 , but the Supreme Court endorsed this idea, court said that
“Tall promises made by political parties in their election manifestos should get legal
sanction” but refusing to entertain a PIL, court left the matter to legislature for better
adjudication in the people's court. The bench said that the judiciary was not the cure
for every problem in the political system.31
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There is a serious need to think on this issue and to bring new laws or policy on this
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matter so that the democratic spirit of the elections could be maintained. For this both
options of compulsorily binding of the promises made in the election manifestos and
right to recall for the non-fulfillment of such promises need to be considered.
D. Promotion through Social Media
The Section 126 of the RPA, 1951 provides for a period of 48 hours of election
silence. Under this section, the political campaigning in all the constituencies comes to
an end 48 hours before the polling, thereby all the party leaders or party workers who
are not registered as voters are asked to leave the constituency.32 But the problem
arises when this provision is to be implemented in the digital world, over the internet
and social media. As Pavan Duggal, one of the nation's top cyber law expert told IANS
that “taking money for tweeting on behalf of political parties is definitely unethical, but
it is not illegal, the Information Technology Act, 2000 is completely silent on this.33
Keeping this lacuna in view on 12 Jan 2019 while hearing a petition, the Bombay
High Court asked to submit suggestions for observing election silence on social media.
The Election Commission told the court that it could not restrain private individuals
from making political comments or posts in favor of or against any political party 48
hours before polling day.34 Then the petitioner clarified that petitioner just want social
media giants to stop taking money from people for advertising sponsored ads that are
political in nature by adopting the same guidelines and policy it has in countries like
UK and US.35 The High Court said the “EC has a
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constitutional obligation to hold fair elections and hence should take steps to prohibit
advertisements or paid political content on social media.”36 Following this, Facebook
and Google in India told the Bombay High Court that they are bringing in new rules for
political advertisements before the general elections to prevent foreign intervention.37
So the need of the hour is to make the rule of ‘election silence’ applicable in digital
world also and in the latest development, a committee formed by the Election
Commission has sought amendments to the law, aimed at preventing social media and
other digital platforms from carrying out political advertisements 48 hours before the
elections.38
E. Data mining : Social monitoring
In the wake of the latest technological development, there is a wave of apps and
websites being developed by the politicians and political parties giving a chance to the
public to connect with them. There are allegations that in the guise of these social
media connections, political parties develop apps to collect and mine data of the app
users. These apps are used to observe the behavior of app users so that to use this
data in influencing them in election by designing election campaigns that is voter
particular and not general in nature.
Data analysis identifies what social and economic problems are trending and then
design a campaign around the findings. This is evident from the fact that “Christopher
Wylie, a whistle blower who exposed Cambridge Analytica's role in a data breach
affecting 50 million Facebook users, tweeted documents that suggested that the firm's
parent company, Strategic Communications Limited (SCL) conducted behavioral
research
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and polling for at least six state elections in India between 2003 and 2012, including
the 2009 national election.”39
This being a clear violation of the privacy of an individual as well as hijacking of the
electoral democracy and it needs to be curbed. This practice of gaining unequal
standing in the elections using the money and resources by influencing voters needs
to be stopped.
F. Opinion and Exit polls
There is a need for the regulation of the opinion and exit polls to preserve the
sanctity and integrity of the elections as these polls have the ability to influence
electoral behavior and distort election outcomes, by manipulating the results in favor
of a specific political party, for example:“in February 2014, a sting operation by a
Hindi news channel claimed that numerous poll agencies were willing to manipulate
their poll projections by increasing their margin of error by a certain percentage
points, in favor of certain specific parties”.40 It is imprudent to put a complete ban on
opinion polls because this will not amount to a reasonable restriction under Article 19
(2), as opinion polls also fall under the freedom of the press, which comes out of the
freedom of speech and expression, although not being recognized separately,41 so
there is a need to maintain a balance of interest.
An attempt in 1998 was made by Election Commission to regulate opinion polls by
laying down “Guidelines for Publication and Dissemination of Results of Opinion
Polls/Exit Polls.” These guidelines led to protests by media on the ground of
infringement of fundamental rights and certain newspapers refused to observe them.
In this dispute, the SC observed that without the force of any statutory law, these
guidelines cannot be enforced. Thereafter Section 126-A was added, wherein the
“conduct of exit polls and publishing or publicizing by means of print or electronic
media or dissemination in any other
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manner whatsoever, the result of any exit poll has been prohibited during such period
and the Election Commission may, by a general order, notify in this regard.” Section
126-B was also added, which provided punishment for violation of Section 126-A.
But if we look at the ground reality, there is much that needs to be done. Thus the
recommendations are that the election commission needs to be empowered so that it
can deal with the issue.
G. Compulsory Disclosure
Now the issue is that if the politicians and political parties can be compelled to
compulsorily disclose some information under the political communication in the
interest and benefit of society at large and to protect the democratic spirit of electoral
system?
Firstly, the Supreme Court in Union of India v. Assn. for Democratic Reforms42 gave
the answer in an affirmative and directed the Election Commission to call for certain
information on affidavit from candidates contesting elections regarding the criminal
cases filed against them whether pending or resulting in conviction, acquittal or
discharge, including the quantum of sentence, if passed, terming such right to know
as to be the meaningful exercise of Article 19(1)(a). Furthermore when Representation
of the People (Third Amendment) Act, 2002 sought to restrict the decision of SC was
struck down in People's Union for Civil Liberties v. Union of India,43 by the court.
Secondly, under Sections 77(1) and 78 of the RPA, “all contesting candidates are
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also required to maintain a correct account of their election expenses and lodge a true
copy of the same with the district election officer within thirty days from the date of
election of the returning candidate”. Violation of this provision could lead to
disqualification for a period of three years under Section 10-A of the RPA.
So these two facts shows that the politicians and political parties can be compelled
to make political communication and can be asked to disclose some information in the
interest of the society. But the question is what more can be done? It has been noted
by the Election Commission
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that “candidates have repeatedly failed to furnish information, or grossly undervalued

information such as the quantum of their assets.44 ”
The Supreme Court in this regard in People's Union For Civil Liberties v. Union of
India45 highlighting the need of stronger disclosure and auditing rules endorsed the
NCRWC's Report. The Justice J.S. Verma Committee Report on Amendments to
Criminal Law (2013) also made recommendations, one particular was to the fact that
in case of conviction, there must be disqualification that would lead to the seat being
declared vacant. The Law Commission of India in its 255th report suggested various
amendments to the RPA, regarding the expenses and contributions in elections,
maintenance, audit, publication of accounts, disclosure and the penalties for
contraventions for both political parties as well as the individual candidates. These
amendments need to be seriously considered and shaped in the form of law.
H. Anti-Defection law and Compulsory Speech
Voting can be regarded as a form of expression,46 so article 19(1) can also be
considered to be ensuring freedom to vote. Elected representative of people should
have freedom to exercise their vote and choose and make laws for which people have
elected them, but the anti-defection law is a kind of restriction on this freedom, where
paragraph 2(1) of the Tenth Schedule of Indian Constitution provides that “a member
of Parliament or State Legislature belonging to any political party shall be disqualified
for continuing as such member, if he votes or abstains from voting in the House
contrary to any direction issued by the political party to which he belongs or by any
person or authority authorized by him on this behalf, without obtaining, in either case,
the prior permission of such political party, person, or authority and such voting or
abstention has not been condoned by such political party, person or authority within
15 days from the date of such voting or abstention.”
Although the purpose of the Tenth Schedule is to “prevent the breaching of faith of
the electorate” as when “a constituency returns a candidate to the Legislature, it does
so on considerations based on the ideologies of the political party he represents and it
is only logical that where the
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candidate, after being elected, leaves that party or acts contrary to its policies, he
should be recalled for betrayal of the faith of the electorate.”47 But this gives the power
to undemocratically appointed political party head to decide what will be the
expression of the vote of a democratically elected candidate while making law and
transacting business in parliament, which seems to be an unjust and unreasonable
restriction upon their freedom of speech and expression.
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So to balance on one hand the sanctity of the parliament by not allowing the
members to indulge in horse trading, and on the other hand the sanctity of the
democratic process of law making, there is a serious need of deliberation on this issue.
I. Paid advertisement and news
A free and fair election and level playing field is the foundation of any democracy.
The paid news and advertisements are a threat to this democratic spirit by making
elections favorable to those who manage to get more and more funds and thus are
able to bear the costs of political advertising.48
“Political advertising are activities related to promoting an electoral candidate or
a political party or a policy proposed by a particular party, in order to make an
appeal to the public, and can be by advertising on issues, which reflect important
societal debates, which are generally in the nature of political propaganda or
pursues political ends.”49
Paid news is defined by the Sub-committee of the Press Council of India as “any
news or analysis appearing in any media (Print & Electronic) for a price in cash or kind
as consideration.” There is a distinction between paid news and paid advertisement, as
the former is the promotion disguised in shape of news and editorials, but the latter is
the simple advertisement.
Now coming to the problems, firstly, the media has the power to influence the
voters’ decision, so media reporting are sometimes not neutral and be easily distorted
by money, leading to influencing voters in a particular manner. Secondly, “Money
supplies assets for advertising and other forms of political solicitation that increases
the candidate's exposure to the
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public”.50 Thirdly, this leads to a divide between the rich and the poor candidates as “if
one candidate is prepared to expand money to unimaginable limits, he is preferred to
be nominated against the genuine and deserving candidate.51 ”
The available laws in the country dealing with this aspect are Section 77(3) of the
RPA limiting the election expenditure,52 violation of which is a corrupt practice as per
Section 123(6), and as per Sections 8-A and 11-A can lead to disqualification. In
addition Section 10-A disqualifies a candidate upon failure to submit details of
expenditure.
Holding these laws to be sufficient, the Supreme Court recently refrained from
interfering in these matters and dismissed a PIL seeking a ban on ‘paid news’ and left
it open to the petitioner to approach the Election Commission which is the concerned
authority and53 also dismissed another petition holding that the Election Commission
is authorized to investigate the company of paid news and non-disclosure of
expenditures in the elections.54
Despite these laws, the problem of paid news is rampant either because there is
neither complete prohibition nor any provision explicitly dealing with this issue. The
problem with the current laws is that “the same is not properly regulated, either due
to loopholes in the law, or improper enforcement.”55
The data reveals that the actual campaign expenditure made by a candidate is “in
the range of about twenty to thirty times the limits, candidates and parties in the
2009 general elections alone spent roughly $3 billion on campaign expenditures.”56 “In
the assembly elections held in the
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period 2011-2013 alone, there have been 1987 cases where a notice for paid news has
been issued to the candidates and 1727 cases are there where the practice of paid
news has been confirmed.”57 The Law Commission of India has also expressed the
concern that the expenses on elections are much higher than the limits.58 The Election
Commission of India in 2014 recognized that “concerns have been expressed in
various quarters that money power is disturbing the level playing field and vitiating
the purity of elections”.59
It was only in 1975 that the Supreme Court started considering third party
expenditure as electoral expenditure,60 with the judgment of Kanwar Lal Gupta v.
Amar Nath Chawla61 and later in Ministry of Broadcasting v. Gemini TV (P) Ltd.62
passed an order stating “all the political advertisements proposed to be issued on TV
channels and cable networks by any registered political party/any group or
organization/ association/ individual candidate shall be pre-certified by the designated
certification committee at various levels to be constituted by the Election Commission
of India” and the Election Commission of India, in consonance with the order, issued
instructions and constituted committees.63 The Election Commission of India is also
mandated to establish district level committees as per the recommendation given by
the PCI Report.64
The stand of the Supreme Court has also changed, when in a hearing, it stayed the
Delhi High Court order in the Narottam Mishra paid news case. Delhi High Court in
Narottam Mishra paid news case tried to tie the hands of the Election Commission
from acting on any instance of paid news and issued an order wherein the Para 77 of
the judgment of the division bench said that “Election Commission's limit cannot
ordinarily extend to judging the content of speech; it is only to adjudge whether the
election expenses incurred by the candidate or someone on her or his behalf, under
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her or his authority have been accounted for.”65 Keeping all this in view and the
rampant problem that exists, there is a need of more stringent rules and laws and a
strong implementation machinery is also required to curb this vice.
7. CONCLUSION
Biggest need is to frame specific rules governing political communication so that it
is not left to be governed by the whims of the candidates. The conduct of free and fair
elections is a part of the basic structure of our constitution and is the responsibility of
the Election Commission. The Election Commission needs to be empowered with
specific laws giving specific powers.
There also is a need to precisely define the term ‘political communication’. It is a
challenge as there is a lot of subjectivity with regard to perception as well as definition
and meaning of the term ‘political communication’. The legal vacuum in defining the
term with regards to the authority, responsibility and legal procedure further adds to
the vagueness and misconceptualisation.
When it comes to execution of principles of free and fair elections on the ground
level, both (‘Executive’ and ‘Legislative’ wing of the State) being an interested party
and having an inherent interest in the conduct and outcomes of the elections, poses
hurdles and is reluctant for any electoral reforms, that is why most of the electoral
reforms in India have come by pronouncement of judicial decisions on the PILs filed by
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the citizens.
Therefore authors would like to submit that instead of empowering Election
Commission through statutory laws, the Election Commission should be empowered
through the constitutional amendment by amending the chapter relating to elections
and subsequently adding a schedule in the constitution laying down the powers.
Furthermore, the Election Commission must be given robust powers to make rules and
to implement them without any interference of the legislative body as well as the
executive. Political communication is a continuous phenomenon and is not limited to
the election season. The Election Commission and other authorities
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dealing with the political communication should not be active during election season
only but they should be empowered so as to be proactive irrespective of the time, to
fulfill their responsibility.
———
* Associate Professor, Department of Laws, Panjab University, Chandigarh; E-Mail : anilthakur@pu.ac.in
** Advocate, Punjab and Haryana High Court. E-mail : gargkrishan0@gmail.com
1
Swanson, D. and Nimmo D., New Directions in Political Communication : A Resource Book, (Thousand Oaks :
Sage, 1990), 9.
2Denton R.E. and Woodward G.C. (1998), Political Communication in America, (New York : Praeger, ISBN 978-
0275957834), 11.
3 “What Is Political Communication,” Association of Accredited Public Policy Advocates to the European Union,
accessed July 14, 2019, <http://www.aalep.eu/what-political-communication>.
4
McNair B., An Introduction to Political Communication, (London : Routledge, 2003), 24.
5 United Nations General Assembly Resolution, 217-A(III), 1948.
6 The Constitution of India.
7
Ibid.
8
Tata Press Ltd. v. MTNL, (1995) 5 SCC 139 : AIR 1995 SC 2438; See also Hamdard Dawakhana v. Union of
India, AIR 1960 SC 554 : (1960) 2 SCR 671.
9 Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305; See also : Bennett Coleman & Co. v. Union of India,
(1972) 2 SCC 788 : AIR 1973 SC 106.
10
Subhash Chandra Aggarwal v. Indian National Congress, 2013 SCC OnLine CIC 8915 : [2013] CIC 8047.
11 Law Commission of India, Electoral Disqualifications, 244th Report, 2014.
12 Supra note 10.
13
Law Commission of India, Reform of Electoral Laws, 170th Report 1999.
14“National Commission to Review the Working of the Indian Constitution”, Ministry of Law and Justice, accessed
July 14, 2019, <http://www.lawmin.nic.in/ncrwc/finalreport/volume1.htm>.
15 Incal v. Turkey, Application no. 41/1997/825/1031 (1998).
16
S. Sivakumar, Press Law and Journalists, (Universal Law Publishing Co., Gurgaon, 2015), 11.
17
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
18Protection of Civil Rights Act, 1955; Religious Institutions (Prevention of Misuse) Act, 1988; Cable Television
Network Regulation Act, 1995; Cinematograph Act, 1952; The Code of Criminal Procedure, 1973.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
19
The International Covenant on Civil and Political Right, 1966, (99 UNTS 171 (1966)); The International
Convention on the Elimination of All Forms of Racial Discrimination, 1966, (660 UNTS 195 (1966)).
20 (1996) 1 SCC 130 : AIR 1996 SC 1113.
21 (2014) 11 SCC 477 : AIR 2014 SC 1591.
22
Law Commission of India, Electoral Reforms, 255th Report, 2015.
23 S.R. Bommai v. Union of India, (1994) 3 SCC 1 : AIR 1994 SC 1918.
24
(2017) 2 SCC 629.
25 Ibid.
26 “Pre-election Freebie Distribution Needs Regulation : Supreme Court”, Down to Earth, July 4, 2015, accessed
July 14, 2019, <https://www.downtoearth.org.in/news/preelection-freebie-distribution-needs-regulation-supreme
-court-41563>.
27 Ibid.
28
“Freebies Promises by Parties Vitiate Election Process, Needs Regulation : SC”, Live Mint, July 5, 2013,
accessed July 14, 2019, <https://www.livemint.com/Politics/VjfXEgQPBTBsblzpIgOxoK/Freebies-promises-by-
parties-vitiate-election-process-needs.html>.
29 Law Commission, Supra note 22.

30 Ibid.
31“Promises in Poll manifesto not Legally Enforceable : Supreme Court”, The Times of India, September 29, 2015
accessed July 14, 2019, <http://www.timesofindia.indiatimes.com/articleshow/49146022.cms>.
32“Election Commission Issues Prohibition Protocol for 48 hours Before Punjab Poll”, The Economic Times, Feb 2,
2017, accessed July 14, 2019, <https://www.economictimes.indiatimes.com/news/politics-and-nation/election-
commission-issues-prohibition-protocol-for-48-hours-before-punjab-poll/articleshow/56939881.cms>.
33 “Influencers Manipulating Social Media, Indian IT Act Silent”, The Economic Times, February 20, 2019,
accessed July 14, 2019,
<https://www.economictimes.indiatimes.com/industry/media/entertainment/media/influencers-manipulating-social
-media-indian-it-act-silent/articleshow/68083504.cms>.
34 “Can't Stop Political Comments, Posts by Private Individuals on Social Media : ECI to Bombay HC”,
TimeNowNews.com, January 11, 2019, accessed July 14, 2019,
<https://www.timesnownews.com/india/article/cant-stop-political-comments-posts-by-private-individuals-on-
social-media-eci-to-bombay-hc/345772>.
35“Sponsored Ads : Submit Suggestions on Regulating Paid Content on Social Media : Bombay HC Tells EC,
Petitioners”, Live Law, January 12, 2019, accessed July 14, 2019, <https://www.livelaw.in/news-
updates/sponsored-ads-submit-suggestions-regulating-paid-content-social-media-bombay-hc-ec-142052>.
36“Take Steps to Prohibit Paid Political Content, Ads on Social Media : Bombay HC to EC”, Live Law, January 24,
2019, accessed July 14, 2019, <https://www.livelaw.in/news-updates/prohibit-paid-political-content-ads-on-
social-media-142373>.
37“Facebook, Google to Bring Rules on Poll Ads to Stop ‘Foreign Intervention’ ”, The Times of India, February 18,
2019, accessed July 14, 2019, <https://www.timesofindia.indiatimes.com/india/new-rules-for-political-
advertisements-on-social-media-facebook-google-tells-bombay-high-court/articleshow/68049752.cms>.
38“Election Commission Seeks Ban of All Political Advertising on Social Media 48 Hours Before Polls”, AdAge India,
January 30, 2019, accessed July 14, 2019, <http://www.adageindia.in/advertising/election-commission-seeks-
ban-of-all-political-advertising-on-social-media-48-hours-before-polls/articleshow/67744379.cms>.
39“Whistleblower Claims Cambridge Analytica's Partners in India Worked on Elections, Raising Privacy Fears”, The
Washington Post, March 28, 2019, accessed July 14, 2019,
<https://www.washingtonpost.com/world/asia_pacific/whistleblower-claims-cambridge-analyticas-partners-in-
india-worked-on-elections-raising-privacy-fears/2018/03/28/1168c04c-328a-11e8-b6bd-
0084a1666987_story.html>.
40 “Sting Operation Reveals Massive Manipulation by Poll Agencies”, The Economic Times, February 26, 2014
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
accessed July 14, 2019, <http://www.articles.economictimes.indiatimes.com/2014-02-
26/news/47705569_1_opinion-poll-public-opinion-sting-operation.html>.
41 Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305.
42 (2002) 5 SCC 294.
43 (2003) 2 SCC 549.
44
Law Commission, Supra note 22
45 (2003) 4 SCC 399.
46 People's Union for Civil Liberties v. Union of India, (2003) 4 SCC 399 : AIR 2003 SC 2363

48 Ibid.
49 Ibid.
50 Kanwar Lal Gupta v. Amar Nath Chawla, (1975) 3 SCC 646.

51 Ashok Shankarrao Chavan v. Madhavrao Kinhalkar, (2014) 7 SCC 99.
52Election Commission of India, Conduct of Election (Amendment) Rules, 2014, No. 3/1/2014/SDR-Vol.-III, March
5, 2014, accessed July 14, 2019, <http://www.eci.nic.in/eci_main1/current/ImpIns1_06032014.pdf>.
53 “Everybody With Any Grievance Can't Rush To SC With A PIL, SC Refuses To Entertain Plea To Ban ’Paid News’
”, Live Law, July 30, 2018, accessed July 14, 2019, <https://www.livelaw.in/everybody-with-any-grievance-cant
-rush-to-sc-with-a-pil-sc-refuses-to-entertain-plea-to-ban-paid-news>.
54 “No Relief to Ashok Chavan in Paid News Case, as Supreme Court Dismisses his Petition; Says EC Can Inquire
into Paid News Allegations”, Live Law, May 6, 2014, accessed July 14, 2019, <https://www.livelaw.in/relief-ashok
-chavan-paid-news-case-supreme-court-dismisses-petition-says-ec-can-inquire-paid-news-allegations>.
56Timmons, Heather and Hari Kumar, “India's National Election Spreads Billions Around”, The New York Times,
May 14, 2009.
57 “Handbook for Media, General Election to the 16th Lok Sabha, 2014”, Election Commission of India, accessed
July 14, 2019, http://www.eci.nic.in/eci_main/ElectoralLaws/HandBooks/Handbook%20for%20Media%202014.pdf.
58 “Background Report on Electoral Reforms, 2010”, Ministry of Law and Justice.
59 “Guidelines on Transparency and Accountability in Party Funds and Election Expenditure”, Election Commission
of India, No. 76/PPEMS/Transparency/2013, August 29, 2014, accessed July 14, 2019,
<http://www.eci.nic.in/eci_main1/PolPar/Transparency/Guidelines_29082014.pdf>.
60 Karimji Rehmanji Chipa v. Abdurahim Tajuji, 36 ELR 283.
61 (1975) 3 SCC 646.
62 N. SLP (Civil) N. 679/204, dated 13 April, 2004.
63
Law Commission, Supra note 22.
64 Ibid.
65 “SC frees Election Commission Hand to Fight Paid News”, The Economic Times, October 31, 2018, accessed
July 14, 2019, <https://www.economictimes.indiatimes.com/news/politics-and-nation/sc-frees-election-
commission-hand-to-fight-paid-news/articleshow/66438922.cms>.
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
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Page 1 Monday, October 04, 2021

(2020) 10 GJLDP (October) 16

An Overview of Political Communication under the Freedom of Speech and

AN OVERVIEW OF POLITICAL COMMUNICATION UNDER THE FREEDOM OF SPEECH AND

4. FREEDOM OF POLITICAL COMMUNICATION

6. ISSUES AND CHALLENGES ARISING OUT OF THE FREEDOM OF POLITICAL

classes, many other laws18 and various general international instruments19 .

B. Communal and Caste Politics

that “candidates have repeatedly failed to furnish information, or grossly undervalued

29 Law Commission, Supra note 22.

47 Law Commission, Supra note 22.

50 Kanwar Lal Gupta v. Amar Nath Chawla, (1975) 3 SCC 646.

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