Rajasthan Patrika, a highly popular newspaper, has seen a sharp decline in government advertisement allocation over the last year. According to reports, the alleged reason for the decline was the political ideology of the Patrika, which did not favour the state government. The state government however claimed that the decline was necessary to correct the existing imbalance in advertisement allocation. The “fight for survival” drew to an end earlier this month when the Supreme Court ordered the Rajasthan government to allocate a higher percentage of advertisements to the Patrika.

Advertisement allocation is necessary for newspapers to reduce their cost of production. Declining advertising revenues would force publishers to pass on the cost to readers, which would negatively impact circulation. This practice has been held to be against the ‘Freedom of the Press’.

While not explicitly enumerated, Freedom of the Press is a constitutionally protected right under Article 19 of the Constitution (Romesh Thappar vs. State of Madras). International instruments like the American Convention on Human Rights prohibit ‘indirect’ means of censorship (Article 13.3). The Office of the Special Rapporteur for Freedom of Speech and Expression (Inter-American Commission on Human Rights) in the Principles on the Regulation of Government Advertising and Freedom of Expression mentions curbing advertisement allocation as an ‘indirect’ means of censorship.

Like Rajasthan Patrika, Ushodaya Publications, a Supreme Court case, dealt with a similar set of facts in 1981. In Ushodaya Publications vs. Government of Andhra Pradesh, the petitioners claimed that the ‘Advertisement Procedure’ stipulated in the Government Order served as a restraint on the Freedom of Speech and Expression under Article 19 of the Constitution. The Order specified certain production and circulation standards, which the publishers considered restrictive. The petitioners also claimed that absence of a “right to notice and hearing…a machinery for redress or correction of an adverse decision by way of appeal or revision” rendered the system vague and arbitrary. The courts however held that the mechanism was not unconstitutional and merely streamlined the advertisement allocation process through the Director of Information and Public Relations. The discretion of the Director was not discriminatory since advertisements were ‘commercial speech’.  Advertisement allocation was not considered integral to the Freedom of Press.

The new DAVP Policy

Roughly three decades later, the Freedom of Press related concerns raised in Ushodaya remain unaddressed.  

The rules governing advertisement allocation are over-looked by the Directorate of Advertising and Visual Publicity (DAVP). The DAVP is a nodal agency through which government bodies streamline the advertisement allocation process.  In June of 2016, the Information and Broadcasting Ministry published a new policy for the DAVP , the National Advertisement Policy  . Among other concerns, the Policy was introduced to “focus on transparency and equity in release of government ads”.

The Policy allocates ads to ‘small’, ‘medium’ and ‘big’ newspapers, based on their circulation numbers. Following a ‘scorecard’ system, the higher number of points a newspaper has, the greater percentage of ads it will be allocated. Rajasthan Patrika happens to be an ‘empanelled’ newspaper which would score highly. (It is a member of the Audit Bureau of Circulation and is one of the most widely read papers in the country, which leads us to believe that it must be widely circulated.)

The process of ‘empanelling’ is multi-pronged and extensive. With six criteria, ranging from approval from the Audit Bureau of Circulation and the Registrar of Newspapers of India to an annual subscription payment to the Press Council of India, only select newspapers are empanelled. The policy faced criticism from small and medium enterprises for favouring larger newspapers. The renewed empanelling process would seemingly favour existing members of the ABC/RNI.

Criticism of the Policy

In addition to the criticism faced by smaller newspapers, the policy has a few inherent flaws. Similar to the Government Order in the Ushodaya case, the DAVP Policy also does not have a redressal mechanism. The ‘minimum print area’ criterion under Clause 11 of the Policy is vaguely reminiscent of Bennett Coleman vs. Union of India where the permissible number of pages were regulated under the Newsprint Policy of 1972-73. The courts in this case held the limit on the number of pages to be unconstitutional. ‘Minimum print area’ could severely restrict circulation of papers, as well.

Several of the clauses rely on being vetted by the Audit Bureau of Circulation (ABC) or Registrar of Newspapers for India (RNI). These agencies audit the circulation of and verify the legitimacy of the newspapers. The ABC also requires a newspaper to be registered under the RNI to be considered for membership at the bureau. However, reports of fake newspapers/journals registered by the RNI were afloat last year. These ‘fake’ publications, which had either printed the same content multiple times or had not printed at all, were being allocated government ad revenue. A huge discretion between the number of newspapers circulated in the districts and those empanelled by the DAVP was found. Amidst allegations of corruption, DAVP and RNI’s conduct renders the whole system of ‘empanelling’ questionable.  

The ABC Manual paints a murky picture as well. Clause 14.7 states that non-submission of books and records “will lead to non – consideration for certification”. While in the same document, Article 5A gives ABC the authority to revoke membership in the event of non-submission of circulation figures. Similarly, in the case of the ‘fake’ publications, the RNI admitted they were ‘not empowered to take action’.

Conclusion

‘Empanelling’ under the DAVP is a restrictive practice and would lead to curtailing freedom of speech and expression. An ‘indirect’ means of censorship, the multi-pronged empanelment process is subject to corruption and arbitrariness. The DAVP Policy renders the allocation system vulnerable and open to misuse. The need of the hour is a far more coherent and transparent set of guidelines.