File photo of Fali Nariman | Kaushik Roy/India Today Group/Getty Images
Fali Nariman warned the government against defying convention in appointing the next Chief Justice of India | Kaushik Roy/Getty Images
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EC move comes weeks after Delhi High Court held that the poll panel can’t regulate content of media articles.

New Delhi: The Election Commission has sought recommendations from eminent jurist Fali S. Nariman on how to tackle the paid news menace weeks after Delhi High Court ruled that EC’s “remit cannot ordinarily extend to judging content of speech”.

On 18 May, the high court set aside an EC order disqualifying BJP’s cabinet minister in Madhya Pradesh Narottam Mishra, saying the commission’s remit is not to judge the content of the speech and should be restricted to seeing if the election expenditure incurred by a candidate has been accounted under Section 77 of the Representation of the People Act, 1951.

Mishra was disqualified in July last year after the EC was said to have found 42 cases of paid news in newspapers ahead of the 2008 MP elections.

Replying to queries sent by ThePrint, Nariman indicated that the Delhi High Court judgment would be challenged in the Supreme Court.

“It is true that the Delhi High Court has said…that the Election Commission cannot be judges of ‘content of speech’, but section 10A does not deal with ‘content’, it deals with failure to file correct accounts, including for ‘news’ published in newspapers which is paid for, or has to be treated as paid for as an advertisement,” Nariman said.

Under Section 10A of the RP Act, a candidate can be disqualified if he fails to declare his election expenses within the time and in the manner required by or under this Act.

“The only effective law (to deal with a case) where a candidate denies having paid the newspaper and where the newspaper denies any receipt of payment is Section 10A,” Nariman said.

“The Election Commission has to see whether what is published is in truth and substance an advertisement (paid news) for the candidate and to hold that the person concerned has failed to lodge an account of it — and is therefore disqualified — if the total quantum of expenses allowed has been exceeded,” he added.

What is paid news

According the Press Council of India, paid news is any news or analysis appearing in any media (print & electronic) for a price in cash or kind as consideration. The definition has been accepted by the poll panel.

EC officials have repeatedly acknowledged paid news as one of the major hurdles in conducting free and fair elections in India, and in 2011, the commission had proposed making paid news an electoral offence by amending the RP Act. The punishment would be minimum two years of imprisonment.

While a 2015 Law Commission report on electoral reforms had also recommended amending the RP Act to regulate paid news and stringent punishment for those indulging in it, it is yet to be declared an electoral offence.

As reported by ThePrint, the information and broadcasting ministry has readied a draft bill to regulate the print media which has a clause on paid news but it is yet to see the light of day.

The PCI had received 600 complaints of paid news in connection with the 2014 general elections against different newspapers which were forwarded to it by the Election Commission and others, according to data shared by the government in Parliament.

In the subsequent assembly polls, the EC had registered several state-wise complaints of paid news.

For ThePrint's smart analysis of how the rest of the media is doing its job, no holds barred, go to PluggedIn.

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