Are political advertisements in newspapers on the day of an election legally permissible? India’s leading political parties appear to be operating in a legal grey area, a position of ambiguity that they themselves have perpetuated.

Section 126 of the Representation of People Act (1950) prohibits political parties from taking out television ads from 48 hours before an election. It does not, however, explicitly mention the print media. The relevant portions of the Act are as follows:

“Section 126. Prohibition of public meetings during period of forty-eight hours ending with hour ending for conclusion of poll:

Prohibition of public meetings during period of forty-eight hours ending with hour ending for conclusion of poll. (1) No person shall-

(a) Convene, hold, attend, or address any public meeting or procession in connection with an election; or

(b) Display to the public any election matter by means of cinematograph, television or other similar apparatus-, or

(c) Propagate any election matter to the public by holding or by arranging the holding of, any musical concert or any theatrical performance or any other entertainment or amusement with a view to attracting the members of the public thereto, in any polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in that polling area.”

As you can see, print media is not specifically mentioned. Section 126 (A) which deals with the broadcast of exit polls, on the other hand, explicitly mentions that this applies to the print media too.

The Election Commission is aware that this implicit exemption for print does not fit in with the spirit of the law, which is meant to give voters a 48-hour period of silence, free from campaigning. “We don’t really know how this crept in; nobody seemed to have any institutional memory of how print got left out,” Dr. S Y Quraishi, former Chief Election Commissioner, said. Sources in the EC told The Hindu on Saturday that since there had been no legal challenge, the exemption for print continued. “All it needs is for Parliament to amend the law,” an Election Commission official explained.

It seems evident why the two biggest national parties have never moved to close this loophole while in power. While it is the BJP that carpeted Delhi with front-page ads on Saturday, as it did on April 10, the Congress has done the same in the past. A look at the archives of major English newspapers for May 7, 2009, shows that both the Congress and the BJP took out ads.

In a week from now, a Law Commission report on electoral reform is expected, which is expected to tackle this issue. But governments do not always take the Commission’s recommendations on board, and past representations to the Ministry of Law and Justice from various committees and NGOs like the Association for Democratic Reforms on this specific loophole have gone unheeded.