Electoral Process in the time of Big Data:Analysis of the Representation of People’s Act, 1951

Written by Indiradevi Kollipara

Associate Editor at Law & Order

Third Year, BA. LLB. School of Law, Christ (Deemed to be University) Bengaluru


Source: The Wire


Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.


Introduction:


If someone says we belong to the ‘universe’, the next question we could ask is ‘Do you mean by the Universe/s created by Big Data?’. If that didn’t strike any idea, then this article aims to do so. Jamie Bartlett in his book ‘The People vs. Tech’ gave an outline on how the internet kills democracy by sharing some details of the interviews he had with some of the team members in Cambridge Analytica. With the help of the information that is shared by users in social media (not necessarily with the element of knowledge), one can build up a profile of someone and predict choices based on the information available in the database.[1] For instance, the Labour party in the UK relied on the in-house mechanism known as ‘promote’ to enable the senior activists to send local (niche) messages to the right (persuadable) people.[2] These trends go on to show that with the rising influence of these tools on decision making, Indians, now more than ever, require lessons on choices that are being aligned through massive consumption of social media. The Representation of People’s Act, 1951[3] promotes a democratic electoral process by setting out mandates to create free and fair elections in practical connotations. It lays down rules for elected representatives, roles and functions of election commissioners and provides schedules and details about the number of members who can be elected in a state.


Today, in the midst of big data there are various issues that underlie the constitutionality and the extent upon which checks and balances from the side of the judiciary can apply.


In a historic context, there were election tribunals (removed through Constitutional Amendment of Article 324[4]); the Representation of People’s Act, 1951 removed the role of election tribunals and brought in the role of High Courts and Supreme Court to hear cases related to issues arising out of the role and functionaries of elected/potential representatives in the campaigning process. The primary problem that needs to be addressed is the role of psychological profiling and the unfair advantage given to those standing up for elections. Political Strategy Firms have increased and the role of Cambridge Analytica in US elections have been questioned and are under constant screening. Facebook has been a major source of information for political strategy firms to corroborate information and create niche ‘universes’ to expose individual specific ads and campaign strategies. However, these trends and developments are not limited to Facebook; it transcends across various other social media platforms (Twitter, Instagram and LinkedIn to name a few).


In India, this gives leeway to infringe if not one, many facets of fundamental rights namely the right to privacy. In a report done by ThePrint[5], the 2010 Bihar elections had instances of data scientists paving pragmatic studies to win elections.

The primary question that arises, is the exact amount of funding and the extent to which such information is collected. This information is definitely not in the public domain to a great extent, i.e these studies are not available to laypersons or common Indians who rely on the dailies and transient forms of information gathering.

The Supreme Court has also highlighted this conundrum by saying that the ‘purity of elections is lost after soiling through influence of money.[6]This means that the election commission must oversee the criteria for setting a cap on the election expenses given under their rule notification. The election commission has in several instances disqualified members for committing corrupt practices and for going against the rule cap. These problems were also highlighted in the 255th Law Commission Report[7] after gaining perspectives and deliberations on electoral reforms from various researchers.

It is interesting to note that with the influx of the problem posed through social media platforms and constant screening from strategists, section 39-A of the Act becomes redundant and poses a paradox. It sets the mandate of allocating a specific time period for appearances in National Television and rules of screen presence. The provision is outdated, with the ongoing profiling processes constantly screening millions of voters on an omnipresent scale.

Provisions Of The Constitution And Concepts Underlying Democratic Elections.

Article 324 of the Constitution of India likewise recommends the individuals who will comprise the Election Commission. As per this article, it will consist of the Chief Election Commissioner and such number of other Election Commissioners as fixed by the President every once in a while. The appointment of the Chief Election Commissioner and other Election Commissioners will be made in understanding the arrangements of law made for this benefit by the Parliament and they will be designated by the President.

These tenets are governed by Art 14, 19 and 21 of the Constitution, upholding individual liberty and thereby inserting the emphasis on Constitutional Limitations to establish and maintain rule of law. Using algorithmic analysis and behavioural analysis will only impede the inherent right to privacy as affirmed in the case of Justice K.S Puttuswamy v. Union of India[8].


The marvels of paid news and its related, political promoting being introduced as news, can't be found in detachment. They are indispensable to the manners by which the news business, both print and electronic, has been created over the most recent years. There has been a huge change in the manner media business is done. Media is growingly seen as an income-age model by practically all driving media houses. Generally, the two mainstays of media, in particular commercials and article content, have been taken care of independently.[9] Income driven news or publication content was generally seen as harming the validity of media houses. Thus, however income age through notices stayed significant, it unquestionably was not the need of media houses. Nonetheless, as of late, the impulses of income age to run the papers and other media have prompted the developing significance of notices in the running of media houses. These media houses have further permeated to the channels of paid media coverage.


A Comparative Analysis of the Actions Taken in USA And UK:


Cambridge Analytica has been in the spotlight since informant Christopher Wylie uncovered that the UK-based organization utilized wrongfully obtained information of 50 million Facebook clients to impact the consequence of the US official political decision and the deciding on Brexit. The debate has raised new concerns in regards to the abuse of information via web-based media locales, security of clients and the force of web-based media to impact significant political results.


While the contention unfurled, charges were made about the association of Cambridge Analytica with Indian governmental issues. Regardless of whether these claims are right, in all actuality the information of Indian web-based media clients has been out in the open, unprotected, for a long while now. [10]


Statista, an online information gateway, appraises that India will have about 486.7 million cell phone web clients by 2022.[11] The information entryway likewise figures that, in 2019, there would be around 258.27 million interpersonal organization clients in India up from 168.1 million out of 2016.[12]


Conclusion:


The entirety of this has normally raised worries about the country's information security laws. India follows the Information Technology Act, 2000. Under the Act, just passwords, monetary data —, for example, bank subtleties — data relating to an individual's physical, physiological and emotional wellness conditions and sexual direction, clinical records and biometrics are distinguished as "delicate individual information". Elements taking care of such information are needed to have "sensible security practices and methodology". This implies that various substances can pick their own sensible security techniques to ensure delicate information. Such a law focuses on the weakness of information of web-based media clients and the requirement for more rigid information insurance laws.


[1] Jamie Bartlett, The People vs. Tech: How the Internet is Killing Democracy (and how we save it) (2018). [2] Id. [3] The Representation of People Act, 1951, Act of Parliament, No. 43 of 1951 (India) [4] 19th Constitutional Amendment (India) [5] Shivam Vij, Exclusive: The inside story of what Cambridge Analytica actually did in India, The Print, 27 March 2018 https://theprint.in/politics/exclusive-inside-story-cambridge-analytica-actually-india/44012/ Last visited on February 15, 2021 7:00 A.M) [6] Gajanan Krishnaji Bapat v Dattaji Raghobaji Meghe, (1995) 5 SCC 347 (India) [7] Law Commission of India, Electoral Reforms, Report No.255, 12, (March 2015), available at https://lawcommissionofindia.nic.in/reports/Report255.pdf (Last visited on February 14, 2021). [8] K.S Puttuswamy v. Union of India, AIR 2017 SC 4161 (India). [9] Id [10] Shivam Vij, Exclusive: The inside story of what Cambridge Analytica actually did in India, The Print, 27 March 2018 https://theprint.in/politics/exclusive-inside-story-cambridge-analytica-actually-india/44012/ Last visited on February 15, 2021 7:00 A.M) [11] Published by Sandhya Keelery & Jun 29, INDIA: MOBILE INTERNET USERS STATISTA (2021), https://www.statista.com/statistics/558610/number-of-mobile-internet-user-in-india/ (last visited Jul 24, 2021). [12] Rishikesh Kumar, Social Media Marketing: Platform & Its Impact, in MANAGING RESOURCE THROUGH CREATIVITY FOR GENERATING OPPORTUNITIES IN 21ST CENTURY I 144–147 (2019).


BIBLIOGRAPHY


Books:

1. M P Jain, Indian Constitutional Law, 7th Edition, 2014, Lexis Nexis

Articles:


1. Election Commission Controversy by P.K.Ravindranatha Menon, (2010) 9 SCC J-35

2. Electoral Reforms in India: An overview by Saurabh Sinha, (2012) PL April S-24


Reports


1. Law Commission of India, Electoral Reforms, Report No.255, 12, (March 2015)


Websites

1. https://theprint.in/politics/exclusive-inside-story-cambridge-analytica-actually-india/44012/

2. https://www.thehindubusinessline.com/opinion/the-three-pillars-of-elections/article26704196.ece

3. https://www.npr.org/2018/03/20/595338116/what-did-cambridge-analytica-do-during-the-2016-election

4. https://www.reuters.com/article/us-india-election-spending-factbox-idUSKCN1S7398

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