What was the 2015 ruling?
In Common Cause v Union of India, the Supreme Court sought to regulate the way the government spends on advertisements. It essentially regulated the 2007 New Advertisement Policy of the Government of India. The petitioners had argued that there is arbitrary spending on advertisements by the government. The allegations ranged from wastage of public money for political mileage to using advertisements as a tool to manipulate media.
“Since the primary cause of government advertisement is to use public funds to inform the public of their rights, obligations, and entitlements as well as to explain Government policies, programs, services and initiatives, however, when these requisites are not fulfilled in a government advertisement then the whole purpose would be frustrated,” the court said.
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“Patronization of any particular media house(s) must be avoided and award of advertisements must be on an equal basis to all newspapers who may, however, be categorized depending upon their circulation. The DAVP (Directorate of Advertising and Visual Publicity) guidelines do not deal with the said aspect of the matter and hence the necessity of incorporating the same in the present directions to ensure the independence, impartiality and the neutrality of the fourth estate which is vital to the growth and sustenance of democracy will have to be weighed and considered by us,” it said.
A three-judge Bench comprising then Chief Justice of India P Sathasivam, and Justices Ranjan Gogoi and N V Ramana had set up a committee to suggest a better policy.
What did the committee suggest?
The three-member committee — comprising Prof N R Madhava Menon, former Director, National Judicial Academy, Bhopal; T K Viswanathan, former Secretary General, Lok Sabha, and senior advocate Ranjit Kumar — suggested a fresh policy — the Government Advertisements (Content Regulation) Guidelines 2014 with five broad principles:
- Advertising campaigns are to be related to government responsibilities
- Materials should be presented in an objective, fair manner and designed to meet objectives of the campaign
- Advertisements must not directed at promoting political interests of a party
- campaigns must be justified and undertaken in a cost-effective manner
- Advertisements must comply with legal requirements and financial regulations
What did the Supreme Court rule?
It largely accepted the committee report except on a few issues — the appointment of an ombudsman to oversee the implementation of the guidelines, a special performance audit of government spending, and an embargo on publication of advertisements on the eve of elections.
The ruling mandated that government advertisements will not contain a political party’s symbol, logo or flag and are required to be politically neutral and must refrain from glorifying political personalities.
What about photographs in advertisements?
The Supreme Court agreed with the committee’s suggestion “that photographs of leaders should be avoided and only the photographs of the President/ Prime Minister or Governor/ Chief Minister shall be used for effective government messaging”.
Then Attorney General Mukul Rohatgi had opposed the recommendation arguing that if the PM’s photograph is allowed in the advertisement, then the same right should be available to his cabinet colleagues as the PM is the “first among the equals”.
The court, while restricting the recommendation to the photos of the President and Prime Minister, added the photograph of the Chief Justice of India to that list of exceptions.
“We are… of the view that 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, there should be an exception only in the case of the President, Prime Minister and Chief Justice of the country who may themselves decide the question. Advertisements issued to commemorate the anniversaries of acknowledged personalities like the father of the nation would of course carry the photograph of the departed leader,” the court said.
In 2018, the Centre and states including Karnataka, West Bengal, Assam, Tamil Nadu, Uttar Pradesh, Odisha and Chattisgarh sought a review of the verdict on the ground that not permitting the publication of the CM’s photograph would violate the federal structure. An SC Bench comprising Justices Gogoi and P C Ghose relaxed the bar, allowing pictures of Union ministers, Chief Ministers, Governors and State ministers in government advertisements.
What are the takeaways from the SC and HC verdicts?
The SC ruling stepped into content regulation, which is a facet of the right to freedom of speech and expression, and was also in the domain of making policy. This raised questions on the judiciary stepping on the executive’s domain.
The SC ruling did not mandate publication of the photograph of the PM and President, but only restricts publication of photos of government officials other than the President, PM, CJI, CM and the Governor.
In an opposition-ruled state such as Tamil Nadu, exclusion of the PM’s photos is seen as a political move. The Tamil Nadu government told the court that since the Presidential elections had not concluded, it did not include the photos of the President and that there was a delay in receiving consent from the PM’s office on including his photograph. The HC said that considering the “national interest” in the issue, the “excuses taken by the state” cannot be accepted.