REINTERPRETING ELECTORAL SILENCE: SECTION 126 OF THE REPRESENTATION OF THE PEOPLE ACT AND CONSTITUTIONAL PROPORTIONALITY

Abstract

This paper interrogates the viability of India’s 48-hour “silence period” under Section 126 of the Representation of the People Act, 1951 in an electoral environment where algorithmic recommender systems continue to resurface campaign content after formal canvassing has ceased. Anchored in Indian constitutional jurisprudence on prior restraint, proportionality, and Article 324, it proposes the Foreseeability-Control-Mitigation (F-C-M) standard: resurfacing constitutes a prohibited “display” where it arises as a foreseeable effect of platform design, is traceable to an actor exercising proximate control, and persists notwithstanding available mitigation. The Election Commission of India is positioned to enforce ex ante obligations through circulars and process codes, while courts retain ex post proportionality review. Interdisciplinarily, Bourdieu’s field theory explains why silence operates as an equalisation device, temporarily dampening the conversion of economic capital into symbolic dominance at the moment of voter decision. Comparative frameworks from the EU, OSCE, and Australia reinforce the defensibility of short, process-oriented reflection windows when operationalised through transparency requirements, archival access, algorithmic demotion, and narrowly confined takedowns. The conclusion advanced is that §126 is not a relic but, with judicial reinterpretation, remains enforceable, rights-compatible, and technologically attuned.