Future of election law in the era of big data, data analytics, and psychographics

“The fairness of Indian democracy and electoral process is a matter of pride and any attempt to influence the sanctity of the electoral franchise through dubious and questionable means is unacceptable. In particular, all intermediaries and their associates have the legal obligation to maintain security, confidentiality and sanctity of data and any unauthorized use of data can entail legal action.”

Press release of the Ministry of Electronics & Information Technology on Cambridge Analytica, dated 23-03-2018

The press release highlights the harm already done to the democratic process and the potential of obliteration of Indian democracy. Free and fair election is the bulwark on which every democracy is founded. The Ministry appears to focus more on the issue of data security and violation of the fundamental right to privacy than the damage to free and fair election. 

Fundamental to free and fair election is the existence of an electorate who exercises their free will. The term ‘free will’ has an important dimension that the choice electorate make shall be informed at the same time not unduly influenced. The logic therein could be extended to say that the electorate’s choice shall not be impaired by calculated manipulations. The term “ undue influence” used in the Representation of the People Act 1951 (R P Act) is highly significant in this context.

The law permits campaigns to influence voters but the same shall not cross the border and tread into the spectrum of undue influence. The determination of influence as due and undue is a subtle task as the line distinguishing both is opaque. Campaigns should be able to reach the electorate with their messages, as it is pivotal for informed choice. The challenge is when the campaigns manoeuvre the messages to electorate to suit the profile of target group to augment their beliefs and generate biases. The Cambridge Analytica saga went further to profile individual electors and cater messages to suit their sketch, through data analytics and psychographics. 

This raises two fundamental questions; (i) will the actions of campaign get the protection of free speech or are they manipulations that should attract legal barriers (ii) is section 123 (2) of R P Act, which identifies undue influence as corrupt practice in elections, capable of dealing with this phenomena. 

The exposition of undue influence in RP Act and Indian Penal Code (IPC) Section 171 (C), have been done by various judicial forums of India. The features of section 123 (2) of the RP Act can be broken down into the following:

1. Direct/indirect interference or attempt to interfere
2. By a candidate, agent or any one with the consent of either
3. Interference in free exercise of any electoral right

Section 171 (C) of IPC declares voluntary interference of any one with the free exercise of electoral rights as a punishable offence.

“Undue” influence and interference are the pivotal expressions that call for consideration. Supreme Court have settled that running a campaign and getting across once message is not undue influence. (See, Baburao Patel v. Dr. Zakir Hussain 1967, Shiv Kripal v. V V Giri 1970). In a relatively recent decision in Krishnamoorthy v. Shivkumar (2015), the court deliberated whether non- disclosure of entre information about the candidate will amount to undue influence, the court observed thus;

The notion of what constitutes the free exercise of any electoral right cannot be static. The exercise of electoral rights in a democracy is central to the very existence of a democracy. The notion of the free exercise of any electoral right is thus not something that can be ossified. It must evolve with the constitutional jurisprudence and be judged by contemporary constitutional values.

In the context of the issues before the court, it was held that undue influence in RP Act imply ‘any influence on the mind of the voter that interferes with free exercise of the electoral right.’

The standard to identify illegality is the influence the actions of candidate, his agent or any one with their consent, create ‘upon the minds and feeling of the ordinary average voters’ (Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra 1975) the net of undue influence is cast wide. In Krishnamoorthy, the court adopted the standard, as “an act which is calculated to interfere with the free exercise of electoral right, is the true and effective test whether or not a candidate is guilty of undue influence.”

If freedom to elect includes autonomy to exercise judgment and that judgment if mired by external actors, it can be called undue influence. If a candidate, or agent causes such factors to impact, it will be counter to the spirit of free and fair election, which is also part of the basic structure of the constitution of India. In Bachan Singh v. Prithvi Singh 1975, the court observed that the prefix "undue" indicates that there must be some abuse of influence. 

Having said that, there are few practical issues, the effect of Section 123 that deals with corrupt practices in election is all about election campaign. The gateway to it is opened on the notification of election and shuts after the conclusion of it. The activities of profiling and psychographics know no time limits. Also the standard of proof demanded by courts are such that it is rare that election petitions succeed. 

In the world of big data, data anlayitcs and psychographics, the 1951 legislation will have to stretch really hard to upkeep the promise of free and fair election. It must evolve and update with the changing times to be relevant and sustain the already volatile Indian democracy.