Case summary

Title of the case

Common Cause v. Union of India

Citation

Writ Petition (Civil) No.13 of 2003 (Passed on 15^th May 2015)

Relevant laws

The matter involves questions of law related to article 14, 21 & 142 of the Constitution of India.

Brief facts

The matter pertains to the regulation of Government advertisements in order to avoid wastage of Public funds and glorifying certain individuals. The Petitioner (Common Cause) had approached the Hon’ble Supreme Court seeking-

1.      An appropriate writ to restrain the Union of India and all State Governments from using Public funds to project Individual functionaries of the government or the political party.
2.      Additionally the petitioners also prayed for the Issuance of appropriate guidelines to regulate Government action to prevent wastage of Public Funds in connection with such advertisements.

In pursuance of the doubts raised by the petitioner, the Court appointed a committee to provide guidelines in respect of publication of advertisements by the government. The said guidelines known as “Government Advertisement (Content Regulation) Guidelines 2014” have been taken into consideration while pronouncing the judgment by this Hon’ble Court.

Issue of Law

The fundamental issues of law pertaining to the petition were-

1.      Whether the guidelines recommended should commend acceptance and if so whether the same should be made operative and enforceable under Article 142 of the Constitution?
2.      Whether such misuse of governmental powers derogates the fundamental rights as guaranteed by Article 14 and 21?

“Government Advertisement (Content Regulation) Guidelines 2014”

5 principles recommended by the committee, to regulate the contents of advertisement-

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 the objectives of the campaign.
3.       Not directed at promoting political interests of a Party.
4.       Campaign must be undertaken in an efficient and cost-effective manner
5.       Advertisements must comply with legal requirements and financial requirements and procedures.

Petitioner’s Submissions

The following were the submissions by the Petitioner-

1.       Undue political mileage is sought by personifying individuals and crediting them as being responsible for various government achievements and progressive plans.
2.       Misuse of Public funds is in derogation of Fundamental rights guaranteed under Article 14 & 21.

Respondent’s Submissions

The Respondent in the support of his arguments had relied primarily on-

1.      Manzoor Ali Khan & Anr. v. Union of India & Ors. – (2014) 7 SCC 321
2. Umesh Mohan Sethi v. Union of India & Anr.- WP ( C ) No. 2926 of 2012 decided on 12.12.2012

The following were the submissions by the Respondents-

1.       That this matter pertains primarily to governmental policies and executive decisions and it is outside the jurisdiction of this Hon’ble Court to issue guidelines under Article 142.
2.       That in the Object of Guidelines, the word “arbitrary” needs to be more specifically defined.
3.       That the word “political mileage” in the Object of the Guidelines is inappropriate and should be deleted.
4.  That on Clause (vii) under the 2^nd point of the 5 principles recommended (regarding pre-testing of the content of the advertisement), it should be done only when feasible and when the public interest demands.
5. That on Clause (d) of the 4^th point of 5 principles recommended (regarding release of advertisements on the eve of elections), the Union may Issue advertisement that are in Public interest at any time.
6. That it sought the deletion of the suggestion regarding the appointment of an Ombudsman as the government has a sufficient inbuilt machinery for the same purpose.

Judicial reasoning applied

In a situation where the field is open and uncovered by any government policy, to guide and control everyday governmental action, surely  in the exercise of powers under Article 142, parameters can be laid down by this Court consistent with the objects enumerated by any of the provisions of Part IV.

If there is an element of Informative content or that such elements have the effect of keeping the citizens informed of the government functioning then such advertisements should be permissible.

Reference was also drawn with the practices existing in the neighbouring countries and the best practices prevailing in such other jurisdictions were considered. It should be highlighted that the advertisement ought not to foster a positive impression of the ruling government or a negative impression of a person critical to the ruling government.

Cost effective practices of UK and Australia ought to be applied in our country.

With regards to publication of the photograph of an individual, it should be avoided as much as possible since it has the potential of developing a personality cult and image of one or few people which is a direct antithesis to a democratic government.

Lastly the Concept of fairness and even dispensation to all media houses should be maintained by the Government.

Personal Suggestions

The following are my points of suggestion with regards to the judgment-

•   The Union contends that pre-testing the material in case of large scale advertisements should be done only when public interest demands so-

1.       What would constitute “Public Interest” with regards to broadcasting Information?
2.      Isn’t there a slight chance that “Public Interest” might be construed in the Majoritarian aspect and this might lead to oppression of certain classes?

•   Again as per the Union, the advertisements which serve Public Interest may be issued at any point of time without prior notification; this being very vague in nature.
•   As regarding issuance of advertisements on the eve of the elections, the Election Commission (EC) should frame proper guidelines with regards to that and this matter should be taken seriously by the EC.