In a breather to the Election Commission of India, days before five states go to elections, the Supreme Court has stayed a Delhi High Court order that questioned EC’s remit over content of speech and hence paid news.

A Supreme Court bench, in a hearing held on Friday, stayed Para 77 of the High Court order, which effectively tied the hands of the Election Commission from acting on any instance of paid news.

The stay is crucial to upcoming state elections as it will now allow the poll panel to crack down on all instances of paid news in the five states.

EC had filed a special leave petition before the apex court challenging the Delhi High Court order in the Narottam Mishra paid news case in May, arguing that “motivated propaganda” by politicians published in newspapers cannot be considered part of their fundamental right to free speech.

Para 77 of the division bench order said “Election Commission’s remit cannot ordinarily extend to judging content of speech; it is only to adjudge whether the election expenses incurred by the candidate or someone on her or his behalf, under her or his authority have been accounted” for.

This concluding observation by HC had argued that EC was attempting to exercise indirect control over the freedom speech of candidates. 

“The content of a media article, or a news feature or series of features on particular candidates, should ordinarily not be regulated indirectly through the directives of the EC; they essentially fall within the domain of free speech. Any indirect control would impact a citizen’s right to free speech and expression. Such indirect control would chill the right and freeze all debates — essential to democracy,” the HC order had said.

Para 76 of the same order that had said that the EC had “erred in interpreting” various laws and failed to establish that Narottam Mishra, a BJP minister in Madhya Pradesh, was responsible for publication of 42 offending articles/features/ election appeals.

This para had set aside the EC order disqualifying Mishra for paid news.

While the Supreme Court has now granted stay on this particular aspect — most relevant to EC’s locus standi on paid news — the case challenging the Delhi HC order setting aside Mishra’s disqualification will proceed ahead, people familiar with the development said.

Also, this particular observation of the Supreme Court would now be tagged along with an appeal filed by Congress’ Rajendra Bharti who has also challenged the Delhi High Court order, sources said.

EC disqualified Narottam Mishra, MLA from Datia constituency in Madhya Pradesh in July 2017, after it claimed to have established 42 cases of ‘paid news’ in the newspapers in the run-up to polls in 2008. The 69-page EC order observed how the local administration and electoral office bearers ignored the plying of promotional media material disguised as news in newspapers between November 8 and 27, 2008.

The HC order in May 2018, setting aside the EC order, dealt a big blow to its fight against paid news.

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