Advertising Politics: Common Cause v UOI

12 years ago, Common Cause and Centre for Public Interest Litigation had approached the Supreme Court under Article 32 of the Constitution seeking an appropriate writ to restrain the Union of India and all State Governments from using public funds on Government advertisements which are primarily intended to project individual functionaries of the Government or a political party. The writ petitioners had also prayed for laying down of appropriate guidelines by this Court to regulate Government action in the matter so as to prevent misuse/wastage of public funds in connection with such advertisements. The writ petitions, filed as public interest litigations, were resisted by the Union of India primarily on the ground that the issues sought to be raised pertain to governmental policies and executive decisions in respect of which it may not be appropriate for this Court to lay down binding guidelines under Article 142. The decision of this Court in Manzoor Ali Khan & Anr. Vs. Union of India & Ors. and a pronouncement of the Delhi High Court in Umesh Mohan Sethi Vs. Union of India & Anr. had been relied upon by the Union in support of its above stated stand. The issues arising in the writ petitions were considered by the Supreme Court in an earlier round of exhaustive hearings. By order dated 23.04.2014, the Supreme Court, on consideration of the respective stands of the parties and by relying on the principles laid down in the decisions specifically referred to in the aforesaid order dated 23.04.2014, inter alia, acknowledged the fact that the dividing line between permissible advertisements that are a part of government messaging and advertisements that are “politically motivated” may at times gets blurred. As the materials laid before the Court by the parties were found to be inadequate for the purpose of evolving what would be the best practices keeping in view the prevailing scenario in other jurisdictions across the globe, this Court felt the necessity of constituting a Committee for the same. The committee consisted of;

(1) Prof. (Dr.) N.R. Madhava Menon, former Director, National Judicial Academy, Bhopal;

(2) Mr. T.K. Viswanathan, former Secretary General, Lok Sabha and;

(3) Mr. Ranjit Kumar, Senior Advocate;

to go into the matter and submit a report to the Court. . In terms of the order of this Court, the Committee was duly constituted and after full deliberations in the matter, a report had been submitted by the Committee suggesting a set of guidelines for approval of this Court.  Following the submission of the report, the petitioner requested that the said guidelines be approved by this Court and directions be issued under Article 142 of the Constitution of India for enforcement of the said guidelines until an appropriate legislation in this regard is brought into effect by the Parliament.

Overview of Guidelines Issued By Special Committee: 

1. Advertising campaigns are to be related to government responsibilities,
2. Materials should be presented in an objective, fair and accessible manner and designed to meet objectives of the campaign,
3. Not directed at promoting political interests of a Party,
4. Campaigns must be justified and undertaken in an efficient and cost-effective manner and
5. Advertisements must comply with legal requirements and financial regulations and procedures.

Respondents Objections:

The State of Bihar had issues with regard to the recommendation to confine the publication of photographs of the President and the Prime Minister of the country and the Governor and the Chief Minister of the State. According to the State of Bihar such a restriction should not be imposed.

The Union, on the other hand, seriously disagreed with the recommendations of the Committee in respect of the following matters:

(1) Restricted publication of photographs of the Government functionaries and political leaders’ along with the advertisement etc.

(2) Appointment of an Ombudsman

(3) The recommendation with regard to performance audit by each Ministry.

(4) Embargo on advertisements on the evening of the elections.

Judgment:

The Court considered the different aspects of a government advertisement campaign highlighted. The first, with regard to publication of photographs of functionaries of the State and political leaders along with the advertisement issued the Court acknowledged that photographs, have the potential of developing the personality cult and the image of a one or a few individuals which is a direct antithesis of democratic functioning. The legitimate and permissible object of an advertisement could always be achieved without publication of the photograph of any particular functionary either in the State of a political party. In departure to the views of the Committee, which recommended permissibility of publication of the photographs of the President and Prime Minister of the country and Governor or Chief Minister of the State along with the advertisements, the Court opinioned, that there should be an exception only in the case of the President, Prime Minister and Chief Justice of the country. Advertisements issued to commemorate the anniversaries of acknowledged personalities like the father of the nation would be permitted.  Insofar as the recommendation with regard to the appointment of Ombudsman, the court decided that the government should constitute a three member body consisting of persons with unimpeachable neutrality and impartiality and who have excelled in their respective fields. Insofar as performance/special audit was concerned, the Court did not deem it necessary. The Government was asked to implement to rest of .the committees guidelines with the Courts decision as soon as possible.

Analysis:

The decision which was given on the 13^th of May has no doubt created ripples across India, with both legal experts and political leaders commenting on SC verdict. Political parties contend that the SC judgment went against the very ideals of the Constitution by contradicting the federal structure to maintain harmony between the Centre and the State.

Pointing out that both PMs and CMs are elected individuals and hence needed to treated at par, DMK leader and former Chief Minister M Karunanidhi, had in a statement criticized the SC verdict calling it “snatching away the rights of states”.  Stating that in a federal set-up, both PMs and CMs have “equal status” he said. “Both Prime Minister and a Chief Minister were selected by the majority party, that is, one that had won elections, even as the President had the support of a political party.” “The state CM should not be secondary to the PM,” said AIADMK spokesperson, Rabi Bernard who felt that considering the number of illiterate people in India, images are the only way people will relate to their leader, “The first interaction of the people of the state is with the CM”, he said.  The TN Government has already filed a petition in the SC asking for a review in its May 13 judgment.

It should be noted that the petition filled by Common Case and the Center for Public Interest Litigation was basically to remedy two ills;

• To stop wastage of public money on advertisements and propaganda by the ruling party.
• To stop the ruling Parties from using Government resources and machinery to propagate for the political parties benefit.

While the Judgment seems to have curbed both the problems seemingly, there are a couple of glaring loopholes in the same. Even though the Prof. (Dr.) Menon lead committee suggested that both the PM and CM’s not be permitted to have their picture on official publications, why did the Hon’ble Supreme Court, completely disregarding the quasi-federal structure, allow the PM’s pictures to be published?

 Distribution of power between the Centre and states has been provided for in the Constitution of India for the smooth running of the Government. According to the Administrative divisions, India has 28 states and 7 union territories. Each of these regional administrative divisions has an elected government headed by a chief minister. A Governor is appointed by the Indian President, as the representative head of the federal authority in each state. The form of government in India is the quasi-federal form, federal structure and strong unitary spirit. In the federal form of government, a division in Indian Administration occurs; the power is divided between a central authority and constitutional political units such as the states and the provinces. The two levels of government are interdependent and share sovereignty. Both have their independent autonomy and neither can claim to be supreme to the other. The federal system also provides that the constitution is the supreme power of the land.

It should be noted that among the personalities involved for consideration in this case, only the President and the Chief Justice are Constitutional Authorities as such. Meaning that their posts are created by virtue of the Constitution and their posts are deemed to be completely impartial and lacking of political color.  Hence allowing publications to contain pictures of the President and CJI seem completely logical. But why allow the exception to include the Prime Minister, who is after all, in essence, the leader of the party with the majority in the Lok Sabha. Allowing the PM to publish his pictures on Government publications still brings about the second issue this petition was trying to solve i.e stop creation of a political cult personality around a single individual. It should be noted that information about Government policies and projects can be spread even without the use of the pictures of the Prime Minister.

This kept aside that the Judgment clearly says that the State Governments cannot use the Chief Ministers picture in official Government publications. This is no way stops private players from using the Chief Minister’s picture in a publication issues on behalf of the Government by the private player.  The advertisement below(1) was on the 6^th June by Krishapatnam Port Company Ltd. Awkwardly; this advertisement is not in violation of the SC guidelines as it was published on behalf of a private company but I can be assumed based on the nature of the advertisement that it was most certainly paid for by taxpayer’s money.

Curiously enough, even with this apparent loophole, certain Chief Minister’ are not shying away from violating the SC order. The first infringement of the SC ban took place when an Andhra Pradesh government advertisement in the latest issue of India Today magazine titled “Welcome to the Sunrise State – Andhra Pradesh” included a photograph of Chief Minister N. Chandrababu Naidu as part of the visuals. Following that on 27 May, the Economic Times ran a double-page Tamil Nadu government advertisement which included a photograph of Chief Minister J Jayalalalithaa(2), someone who already has huge hoardings and posters of herself all over Chennai. This in itself raises another question as to whether posters and banners can be covered under the scope of this Judgment. Use of large scale cut-outs of political leaders is a common trend in India. Yet, technically they wouldn’t fall under the definition of an advertisement per se, even though they create the problems this petition had tried to remedy. The fact that the SC decision does have loopholes was on display in the capital of Delhi itself, when the State Government in Delhi took out an video advertisement advocating and propagating the activities and development brought about by Delhi’s CM Arvind Kejrewal, without actually using his picture. The advertisement did not technically violate the wording of the judgment, but can be said to have shattered its spirit. But irrespective of the loopholes, it is still the law of the land. And such actions by the Chief Ministers of both Tamil Nadu and AP can hold them liable for contempt. Whether that actually happens or not, can only be said for certain after the Supreme Court hears the review petition on Common Causes & Anr vs UOI.