This hoarding at an traffic intersection in Raipur asks people to vote for those who develop the country – करे राष्ट्र का जो उत्थान, करें उसी को हम मतदान – and such an exhortation would seem harmless and meaningless.

Except for two things.

The entity putting this hoarding is a state government entity – Raipur Smart City Limited – that was incorporated on 16.09.2016 under the Companies Act, 2013 as a state government entity, which is clear from the sub-category SG in its Company Identification Number U74999CT2016SGC007534.

Two, what does it mean for a state government entity to say that electors should vote only for those who ensure the country’s progress. One can only hope there is no political party or candidate that desires to get elected wanting or planning the patan (decline) of the rashtra as opposed to utthan. As any student of language knows words do not work merely denotatively, they work connotatively. And during times of campaign, words do not merely work connotatively. They also work within the context of similar words and images used in other campaigns. Communication students use the much-wider term intertexuality, but one can just restrict oneself to how an ad works in conjunction with another ad issued by a different entity. In this case, one can argue that this is not just subliminal. So the word utthan or growth or progress feeds directly to the campaign of vikas, which has been BJP’s byword. And the image of the road mirrors one of the ads issued by the state BJP, which asks people to remember the way roads were 15 years ago and contrasts it with the roads of today. The point here is not whether the condition of the roads today is better or worse. It is that the communication in this state-government entity’s hoarding works with the ad issued by the BJP. Now, this is an interpretation. Subjective, as a senior election officer in Chhattisgarh said when this example was shared. But law also requires interpretation.

The Model Code of Conduct has a section devoted to Party in Power, and within this Section VII, it has a sub-section (4) that reads:

“Issue of advertisement at the cost of public exchequer in the newspaper and other media and the misuse of official mass media during the election period for partisan coverage of political news and publicity regarding achievements with a view to furthering the prospects of the party in power shall be scrupulously avoided.”

A state-government entity should count as public exchequer. As for determining “partisan coverage of political news and publicity regarding achievements with a view to furthering the prospects of the party in power”, there are no public guidelines available on the ECI website, and unless a ruling party is mentioned, it can be argued that the ad was not partisan.

Also, there is nothing to suggest that ECI has communication specialists who vet an ad for subliminal messages or even for messages like this one that are not even subliminal as much as they are indexical and inferential. And it cannot be anyone’s case that an organization that is tasked with one of the most difficult logistical operations anywhere – elections in India – now have communication specialists reading ads for messages.

The point is more specific about whether state government or union government entities should be allowed to advertise anything in the run-up to the elections that pertain to elections. Imagine if in a state ruled by a different party than the one in New Delhi, a union-government entity were to exhort people to vote for issue x and state-government entities were allowed to vote for another issue y, say progress and justice, where ‘progress’ and ‘justice’ were key words used by these two political parties.

In fact, we may need to move to a more omnibus law that concerns not just political parties but also other entities that put out election-related ads. The ad put out by Mumbai First, an NGO which as per its website works closely with the Maharashtra state government (evidenced by the fact that one of its initiatives was the setting up of the War Room for the state government), offers a cautionary tale.

On the day of the Mumbai Municipal Elections, this entity put out a front-page ad in major newspapers with Aamir Khan as a sort of spokesperson/mascot. The ad used words like transparency and transformation, which the opposition parties said were part of the BJP campaign. A complaint was filed with the State Election Commission. But there is nothing in the public domain that suggests that anything came out of the complaint. And again the State Election Commission cannot be faulted. In the absence of clear laws guiding political advertising or issue-based advertising during the election cycle, no action can be taken. What is important to note is that the electors have no idea who funded Mumbai First’s advertising effort and if nothing else at a bare minimum there should be transparency, the word the advertisement used, in sharing the source of funds for this election-related advertising.

In the case of the Raipur Smart City Limited, there is no ambiguity. A state-government entity put this hoarding. The elections are to be held in Raipur on 20.11.18, and all it is asking is for a vote for those who work for progress, which would pretty much be every party from the BJP to the Congress to the Janata Congress Chhattisgarh (Jogi) to the CPI(M). But then the ad becomes pointless. Unless it is intended to dissuade people from voting NOTA since NOTA cannot directly lead to progress! But that would not be legal since the Supreme Court ensured such a choice. If there was no indexing of a political party, why not just ask people to vote as is done as part of the SVEEPS initiative of the Election Commission.

It is about time that the Election Commission took notice of such ads and within the purview of the law come out with clear directions. Or even better for the Supreme Court to take suo moto cognizance of such advertisements and provide directives, and then whichever way the judgement falls at least there would be clarity as is there, however contentious, in the United States of America with its divided 5-4 verdict in the Citizens United case that unfetters corporate persons from spending any amount they want on political campaigning thus providing non-natural entities the same free speech rights as natural persons under the First Amendment.

An email with the following questions has been sent to the Chief Election Officer of Chhattisgarh. When answered, the replies will be appended here for clarity and for continuing the conversation on the subject.

1) Is there any guideline or rule that assists in determining whether an advertisement that exhorts people to vote for development or social justice or any cause constitutes “partisan coverage”?

2) If there is no such guideline, what is the process for determining whether an ad in the public domain should be examined for partisan coverage if the name of a political party is not mentioned? Or does partisan merely imply the presence of a party’s name?

3) Is there any permission that needs to be obtained by a state or union government entity for any ad pertaining to the election before it is issued?