Plea To Regulate Govt Advertisements : Supreme Court Issues Notice On Common Cause's PIL

The Supreme Court, on Monday, issued notice in a petition seeking directions to restrain Union and State Governments from using public funds on Government advertisements in violation of the guidelines issued by the Apex Court in Common Cause v. Union of India (2015) 7 SCC 1.

After hearing Advocate, Mr. Prashant Bhushan representing the petitioner in some details, a Bench comprising Justices D.Y. Chandrachud and Hima Kohli thought it fit to issue notice in the matter.

The petition seeks the indulgence of the Bench to prohibit state governments from publishing advertisements outside the territory of their respective states except when they do so to attract investors; prohibit publication of advertorials by Governments; prohibiting publication of government advertisements at least 3 months prior to elections; prohibit from publishing photographs of elected public functionaries on government advertisements.

Pursuant to the order of the Apex Court in Common Cause v. Union of India (2015) 7 SCC 1, the Union Government had published guidelines for the functioning of the three member committee i.e. the 'Committee on Content Regulation of Government Advertisements' (CCRGA) through an order dated 06.04.2016. Mr. Bhushan submitted that at present the members of the selection committee as well as the CCRGA are 'partisan' and 'an unabashed propaganda arm of the Government'.

In this regard, the petition implores the Bench to direct the Committee on Content Regulation of Government Advertisement (CCRGA) to appoint three member committee comprising Prime Minister, Leader of the Opposition in Lok Sabha and the Chief Justice of India and also set up an independent website of CCRGA which would provide information about the working of the committee.

Justice Chandrachud pointed out during the course of the hearing that it might not be possible to make such appointments. Particularly, with respect to the appointment of CJI as a committee member, he stated -

"The CJI has enough work to do in the judicial and administrative side."

The concerns raised by the petitioner regarding government advertisement are multifaceted. It culls out the modes of advertising that are malafide and manifestly arbitrary -

1. Publication of advertisements by State Governments outside territorial limits of their respective states;
2. Publication of Government advertisements in the form of 'advertorials';
3. Publication of Government advertisements during/prior to the elections;
4. Publication of Photographs of functionaries on Government Advertisements;
5. Advertisements in the name of awareness campaigns

Publication of advertisements by State Governments outside territorial limits of their respective states

The petition submits that the now-a-days State Governments roll out advertising campaigns outside the territorial limits of their states, with the intention to promote individuals and government without serving any public interest. It is argued that the beneficiaries of the Government initiatives are primarily within their respective States, therefore practice of advertising beyond State borders is disproportionate, unreasonable, arbitrary and in the teeth of the guidelines laid down by the Apex Court.

Justice Chandrachud stated, "A State Government may want to publish what they are doing in a national edition of a newspaper to attract investors, for tourism purposes,..."

Considering the same, Mr. Bhushan submitted that the prayer in the petition which deals with the said issue can be modified accordingly. But he added that if the advertisements' sole purpose is personality projection and is not in furtherance of any public interest then such advertisements ought not to be permitted.

Justice Chandrachud was of the view, "That is democracy right. All public representatives are entitled to tell the country what they are doing. That is the heart and sole of this nation. Politics is also a competitive space."

Mr. Bhushan retorted that the politicians can use funds of their respective political parties for advertisement instead of draining out the public exchequer.

Publication of Government advertisements in the form of 'advertorials'

The petition apprises the Apex Court that governments across the country are indulging in the practice of publishing advertisements in the guise of news articles, which is commonly known as advertorials. It is averred that such advertorials are ingenuine, deceptive, misleading, unregulated and against journalistic ethics, and raised significant constitutional, ethical and moral questions. It also submits that these advertorials lack prominent disclaimers and if they are present, the disclaimers are not specific.

Mr. Bhushan submitted, "They are issuing advertisements in the guise to look like news. These are called advertorials. This cannot be allowed."

Justice Chandrachud expressed his opinion, "Every Govt. issues the press statement, if they put forth in a news magazine that this is what we have done, it is dissemination of information. In my childhood there were people going across the country with loudspeakers. Now politics is also changing. People are more educated…they understand that it is advertorial."

Publication of Government advertisements during/prior to the elections

The petition contends that the governments should not be permitted to advertise during the rup up to elections as it is an undemocratic practice adversely impacting the free and fair elections. It also creates an unequal playing field as the political party in power can easily use the funds from the public exchequer as well as that of their own party to influence the voter's mind through advertisement campaigns, while the oppositions who use only party funds to campaign are constrained by financial limitations from reaching out to the voters. It put forth three ways in which government advertisement prior to elections can be misused -

1. Government have the tendency of disproportionately increasing their publicity budget during their last year in power;
2. Allocation of huge sums of public money by the Central Government towards advertisements/publicity in poll bound states as compared to allocation in non-poll bound states.
3. Government advertisements published before the elections have the tendency of being extremely communal and biased.

To demonstrate the rampant abuse of public funds in government advertising, Mr. Bhushan submitted, "The Covid Relief given in Delhi is being advertised in States where elections are going to be held. How does that information help people outside Delhi? The only objective is that you are using Government funds to project yourself outside Delhi for election purposes. You cannot use government funds for your partisan political advertising."

Justice Hima Kohli enquired, "Is Election Commission party to this petition. One of your prayers is directed against them."

He apprised the Bench that recommendation was issued by the Election Commission that there should be a prohibition six months prior to election.

Publication of Photographs of functionaries on Government Advertisements

It is pointed out that in a judgment passed by the Apex Court only the President, Prime Minister and Chief Justice's photographs were allowed to be published on government advertisements. This order was modified and Governors, Chief Ministers, Cabinet Ministers and Minister In-Charge in both Centre and State were added to the list. The petition argues that pursuantly their photographs are being used extremely liberally in government advertisements for 'personality projection'. It asserts that ration is distributed in sacks with the Prime Minister's photo; vaccine certificates have the photograph of the Prime Minister.

Advertisements in the name of awareness campaigns

The petition submits that the funds allocated for beneficial schemes are being disproportionately used for advertisements in the garb of awareness campaigns. According to it, in the Beti Bachao Beti Padhao scheme, the Government has spent 79% of the allocated funds on advertisements, thus exceeding the 50% quota set out in this regard.

The principles of the guidelines laid down in the judgment passed by the Apex Court in Common Cause v. Union of India (2015) 7 SCC 1 on 13.05.2015, which are relevant to the present petition are as under:

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 efficientand cost-effective manner and
5. Advertisements must comply with legal requirements andfinancial regulations and procedures

As Mr. Bhushan vehemently argued that the present trend of Government advertisement is contrary to the said guidelines, Justice Chandrachud noted that there is no consequence as such to the breach of guidelines.

[Case Status: Common cause v. UOI W.P.(C) No. 142/2022]

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