If banning opinion polls is like prescribing the guillotine for dandruff, regulating social media may make the Election Commission (EC) look like it’s trying to stop a tsunami with blotting paper. I have the greatest respect for the Election Commission. Yes, this ‘Poll-Star’ has a Constitutional mandate under Article 324 to ensure free and fair elections. As a lawyer and former TV journalist who has covered 4 parliamentary and 4 assembly elections in India, my skepticism is two fold. Is it practically possible for the EC to make social media fall in line with its Model Code of Conduct? Can the EC exercise the same control over common citizens who constitute the bulk of the social media, like it does over candidates, political parties and the mainstream media?
An election Code of Conduct for social media bristles with practical difficulties. For instance, campaigning has to end 48 hours before polling. How will the EC enforce this on Twitter or Facebook? Will the tweets or status updates fall silent 48 hours before voting? Remember how a particular political party once released parrots trained to speak ‘vote for xyz’ after campaigning had ended? What if common citizens tweet “I am going to vote for abc” after campaigning ends? Forget the tweets, people are already wearing their political preferences on their twitter handles itself. What is the mechanism to stop voters from influencing each other, which is what social media is all about? And you can expect candidates or political leaders to be circumspect, but what about the millions of other users on social media? I remember how an alert Tamil Nadu Chief Minister, J Jayalalithaa, rightly refused to wave the victory sign for the media, when prompted by a lensman after voting in 2011, as that would have been construed as displaying her party symbol of two leaves.
For election expenditure, the EC can ask candidates for accounts on propaganda through social media. But it may have to accept whatever is furnished, just like some top notch politicians declare old Maruti 800 or Ambassador cars in their list of assets. How does one distinguish between a) a party handle, b) a party-sponsored handle and c) a common follower who merely owes allegiance to a party or leader? And how will you be able to sniff out fake handles and profiles, the number of which, we all know, is rising everyday? Or deal with parody accounts? Or with those masquerading as a particular party member and deliberately violating the Code to get a rival into trouble? And how much will Twitter Inc cooperate with policing its platform – an endeavour that could well go against the very grain of its business model? Since authorities have seen little success in curbing online abuse, they will hardly be able to thrust a Model Code of Conduct on social media!
On the legality of regulation, don’t lose sight of the distinction between the ‘right to vote’ and the ‘act of voting’. While the right to vote is only a Statutory and not a Fundamental Right, the act of voting stems from freedom of expression enshrined as a Fundamental Right under Article 19 (1) (a) of the Constitution. The former is granted, the latter is guaranteed. So while the process of voting is meant to be secret, can you gag a citizen from tweeting a preference or praising a candidate or party or expressing a decision to reject all candidates through the ‘None of the above’ option before polling?
Tricky, isn’t it? My humble advice to the EC is to leave the social media alone. Follow the Beatles who sang “Let It Be”.
(Sanjay Pinto is a Lawyer, Columnist, Author & Former Resident Editor of NDTV)