Distorted message

ON May 13, with a slew of binding guidelines, the Supreme Court disposed of two long-pending petitions challenging large-scale wasteful government spending on advertisements of a political nature.

One guideline states that government advertisements, whether by the Centre or by the States, should not carry the photographs of leaders except those of the President, the Prime Minister and the Chief Justice of India. Delivered by the bench of Justices Ranjan Gogoi and Pinaki Chandra Ghose, the judgment neither justified these exceptions nor provided a rationale for excluding others from this privilege. It, therefore, disappointed governments of States such as Tamil Nadu and Uttar Pradesh, which complained that it was against the spirit of federalism as it barred the publication of photographs of Governors and Chief Ministers and thus sought a review of the judgment. Only Bihar had intervened during the court’s proceedings to oppose the bar on the use of photographs of Governors and the Chief Ministers.

During the hearings, the Central government made an impassioned plea for the removal of the guidelines, which, it claimed, encroached on the legislative domain and placed undue restrictions on the use of the grants voted for by the legislature. It opposed the proposed bar on the publication of photographs of leaders in government advertisements, the appointment of an ombudsman to oversee the release of government advertisements, the carrying out of independent audits of the money spent on advertisements, and the embargo on advertisements during elections.

While the court agreed with the Central government on independent audits and the embargo on advertisements during elections, it advised the government to constitute a three-member body consisting of persons, of unimpeachable neutrality and impartiality, who have excelled in their respective fields to function as the ombudsman. It also held that one single advertisement issued by a Central agency should be enough to commemorate the anniversaries of the few acknowledged public figures whose contribution to the national cause could not be disputed.

Another guideline states that advertisements issued on certain other occasions, for instance, to mark the centenary year of the Patna High Court, do not serve any purpose and must be avoided; the court held that institutions need not be glorified and should earn glory through their contribution and their work.

Two PIL petitions

Two non-governmental organisations, namely, Common Cause and the Centre for Public Interest Litigation, which have successfully litigated many PIL cases in the recent past, filed the two petitions in the Supreme Court, in 2003 and 2004 respectively, relating to government advertisements. The petitioners alleged that in many instances under the guise of communicating with the people, undue political advantage was sought to be gained by naming individuals or political leaders (who were either from a political party or were government functionaries) and crediting them for being responsible for various government achievements and progressive plans. Although the PIL petitions were filed when the first National Democratic Alliance government was at the Centre, the petitioners gave examples cutting across party lines.

The court justified its intervention on the grounds that Articles 38 and 39 of the Constitution enjoined the state to consistently endeavour to achieve social and economic justice for the teeming millions of the country who lived below an artificially drawn poverty line. What can be a surer way in the march forward than to ensure that unproductive expenditure of public funds was avoided? the court reasoned.

The case gives rise to two concerns. One is whether the dividing line between legitimate public expenditure on seeking publicity for the government performance and policies and its incidental or direct effect on promoting the political prospects of ruling parties and their leaders is blurred; if so, whether the court’s intervention could make the distinction clear and bar the use of government advertisements for political purposes. The second is whether the restrictions proposed to be imposed on the release of government advertisements to the media would be tantamount to restrictions on the freedom of the press, as it is likely to cripple the advertisement revenue of the newspapers, and therefore, would fail the constitutional test of reasonableness. A careful reading of the judgment shows that the court only partly succeeded in addressing the first concern and almost ignored the second.

As the eminent legal academic Upendra Baxi suggested in a newspaper article, the court assumed that photographs in advertisements have the potential to create a personality cult, which, it said, was an antithesis of democratic functioning. But the evidence does not support such an assumption. Even if government advertisements can be restricted, it is not possible to restrict the news coverage of political leaders by television channels and newspapers, which could assist in the formation of the personality cult that the Supreme Court despises. Evidence shows that large-scale political advertisements do not really help to improve the political fortunes of parties on the eve of elections. Such huge displays of money power alienate many voters from parties and their leaders, as was evident from the recently held Delhi Assembly election.

Personality cult

It is possible to argue that a personality cult per se is against democratic norms. What the Supreme Court wants to discourage through this judgment is the extreme form of projection of an individual leader at the state’s expense that disturbs the level playing field. But a personality cult can result from a successful political campaign, and this has nothing to do with the release of advertisements. Obviously, the court’s ruling cannot apply to campaigns.

While some people can make ethical arguments against campaigns centred on personalities, others may argue that that is how leaders are born, and the role of such leaders is intrinsic to any democracy. The recent split in the Aam Aadmi Party on this issue illustrates this point.

But Baxi is also concerned about the effect of this ruling on the freedom of the press. The Supreme Court has, in the past, held that not only are advertisements the principal source of revenue for newspapers but they are also one of the factors that contribute to newspaper circulation. If the area for advertisements is curtailed, the price of newspapers will be forced up. Then, circulation will inevitably drop and earnings will decline and that will directly interfere with the freedom of the press. In an earlier case ( Bennett Coleman & Co. vs Union of India (AIR 1973 SC 106)), the Supreme Court ruled that loss of advertisement revenue seriously affected the circulation of a newspaper and a restraint on advertisements would affect the fundamental right of the freedom of the press under Article 19(1)(a) of the Constitution. As Baxi observes, removal or reduction in pictorial content may have a long-term adverse impact on the media’s revenues.

Interim judgment

The May 13 judgment followed an interim judgment in the same case, which the Supreme Court delivered on April 23, 2014. In this judgment, the then Chief Justice of India, Justice P. Sathasivam, found that the existing guidelines of the Directorate of Advertising and Visual Publicity did not govern the issues raised in the petitions, namely, which government advertisements qualified for “public purpose” and which only served partisan ends and were aimed at gaining political mileage. The Supreme Court felt there was a need for it to issue substantive guidelines until the legislature enacted a law in this regard.

The court was of the opinion that the subject matter for which guidelines were to be framed was sensational and significant and hence deemed it proper to constitute a committee of three members to undertake the task of suggesting guidelines to the court after a detailed study of the best practices in public advertisements in different jurisdictions. The committee was headed by N.R. Madhava Menon, a former Director of the National Judicial Academy, Bhopal, and its members were T.K. Viswanathan, a former Secretary General of the Lok Sabha, and Ranjit Kumar, the present Solicitor General of India. It claimed to have held wide consultations with all stakeholders and sought and received suggestions from a cross section of society and from Ministries and departments at the Central and State levels; yet its report had no details of these consultations or of the suggestions it received from civil society and others. The guidelines the committee formulated are called the “Government Advertisement (Content Regulation) Guidelines 2014”.

The committee recommended that government advertisement material should avoid photographs of political leaders and that if it was felt essential for effective government messaging, only the photographs of the President/Prime Minster or Governor/Chief Minister should be used; the committee also recommended that the names and pictures of political parties and their office-bearers such as presidents should not be mentioned in government advertisements.

Justice Gogoi’s judgment inexplicably rejected the committee’s recommendation to exempt Governors and Chief Ministers from the proposed ban.

It appears from the record that the two petitioners differed in their responses to these recommendations. While Common Cause broadly accepted them as balanced and sought the court’s imprimatur, Prashant Bhushan, counsel for the Centre for Public Interest Litigation, reportedly questioned the need to exclude the Prime Minister from the ban as, in his view, the latter is a political leader who may have a vested interest in deriving political mileage from advertisements.

As the Supreme Court gets ready to hear the review petitions filed by the State governments, observers hope that it will address the concerns raised in the aftermath of the judgment.