COMMON CAUSE versus UNION OF INDIA

8. Article 38 and 39 of the Constitution enjoin upon the State a duty to consistently endeavour to achieve social and economic justice to the teeming millions of the country who even today live behind an artificially drawn poverty line. What can be the surer way in the march forward than by ensuring B avoidance of unproductive expenditure of public funds. This is how we view the present matter and feel the necessity of exercise of our jurisdiction under Article 142 of the Constitution to proceed further. c

9. It is neither possible nor feasible or even necessary to try and encompass the myriad situations where government advertisements are issued. Indeed, the situations and circumstances; events and occasions on which government 0 advertisements are issued are infinite. Nevertheless, an attempt can be made to arrive at a broad categorization for the purpose of an illustrative understanding. Advertisements highlighting completion of a fixed period of the Government's Tenure Governments at the Centre as well as in the States often bring out advertisements on completion of a number of days, months and years of governance. In such advertisements, not only the 'achievements' are highlighted even the different tasks F which are in contemplation are enumerated. By way of example one of the points highlighted may be supply of electricity to each and every village. Though the achievements of a Government should not be a matter of publicity and really G ought to be a matter of perception to be felt by the citizens on the results achieved, such advertisements do have the effect of keeping the citizens informed of the government functioning and therefore would be permissible. Advertisements announcing projects: COMMON CAUSE v. UNION OF INDIA [RANJAN GOGOi, J.] On an everyday basis both the Government at the A Centre as well as in different States issue advertisements announcing events like laying of the foundation of different development projects or the inauguration of projects completed. In many of such advertisements the results obtained in the particular field covered by the advertisement and the B plan/targets for the future are highlighted. Though such advertisements may look like a report card of the Government there is an element of informative content in such advertisements inasmuch as information is conveyed to the C citizens as regards government programmes, policies and achievements. Advertisements issued on the occasion of birth/ death anniversaries and such other events: Government advertisements are issued in the memory of great personalities who occupy a significant place in our history, such as, the father of the Nation, Mahatma Gandhi. While such persons must certainly be remembered, what, however, would not be justified is several similar, if not identical, E advertisements issued by different Departments on the same occasion as is happening today. One single advertisement issued by a Central Agency should be enough to commemorate the anniversaries of the few acknowledged and undisputed F public figures whose contribution to the National Cause cannot raise any dispute or debate. Advertisement issued on certain other occasions, for instance, to mark the centenary year of the Patna High Court G does not serve any purpose and must be avoided. Institutions need not be glorified. They must earn glory by contribution and work. Advertisements announcing policies and benefits for public: All advertisements that fall within this category would be in public interest. Such advertisements, as for example in respect of the National Savings Schemes informing the public B about benefits under the Scheme, are purely informational and make people aware of their rights and entitlements. Similarly, advertisements issued to generate public awareness would also be justified on the touchstone of public interest. By way of illustration, an advertisement issued by the Ministry of Health C and Family Welfare informing the public of preventable disease, safeguards to be taken, vaccination programmes for the children, etc. would be highly informative and, therefore, justified.

10. A connected facet of the matter which cannot be ignored is the power of the Government to give/award advertisements to selected media houses and the concomitant issue of freedom of press. Award of advertisements, naturally, brings financial benefit to the particular media house/ E newspaper group. 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 D.A.V.P. F 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 G considered by us.

11. An analysis of the Draft Guidelines as prepared by the Committee set up by this Court in the case may now be made. The applicability of these Guidelines is to all Government H advertisements other than classifieds and in all mediums of COMMON CAUSE v. UNION OF INDIA [RANJAN GOGOi, J.] communication, thereby including internet advertising. The A objective of these Guidelines emphasize the Government's responsibility to disseminate information necessary for the public to know about the policies and programmes of Government. It principally spells out five principles to regulate the contents of advertisements, namely, i) advertising campaigns are to be related to government responsibilities, ii) materials should be presented in an objective, fair and c accessible manner and designed to meet objectives of the campaign, iii) not directed at promoting political interests of a Party, iv) campaigns must be justified and undertaken in an efficient and cost-effective manner and v) advertisements must comply with legal requirements and financial regulations and procedures. The five broad Content Regulations contained in the draft guidelines framed by the Committee are similar to the provisions found in the Australian guidelines. However, under each broad head specific regulatory parameters have been indicated which seem to embody what would be good practices in the Indian context.

12. While under the first head the requirement of conformity of Government advertisements with dissemination of information relating to Government's constitutional and legal G obligations and the corresponding rights and entitlements of citizens is being stressed upon, under the second head objective presentation of the materials contained in an advertisement bearing in mind the target audience has been H A emphasized. Under the third head, the Guidelines state that advertisement materials must not: (a) mention the party in government by its name, (b) attack the views or actions of other parties in opposition, (c) include any party symbol or logo, (d) aim to influence public support for a political party or a B candidate for election or (e) refer or link to the websites of political parties or politicians. It is also stated in the Guidelines that photographs of leaders should be avoided and only the photographs of the PresidenU Prime Minister or Governor/ C Cl1ief Minister shall be used for effective government messaging. The fourth head deals with cost effectiveness of an advertisement campaign and measures to cut down avoidable expenses. A somewhat restricted range of advertising activity on the eve of the elections is also o recommended. Appointment of an Ombudsman to hear complaints of violation of the norms and to suggest amendments thereto from time to time beside special performance audit by the concerned Ministries is also recommended.

13. The Union Government and the State of Bihar have filed their responses to the guidelines suggested by the Committee. The State of Bihar suggests that some of the recommendations of the Committee, details of which need not F be noticed, are somewhat vague and require a more precise definition or meaning. The only aspect of the suggestions where the State has responded emphatically is with regard to the recommendation to confine the publication of photographs of the President and the Prime Minister of the country and the G Governor and the Chief Minister of the State. According to the State of Bihar such a restriction should not be imposed.

14. The Union in its response to the guidelines of the Committee has been more categorical in suggesting certain COMMON CAUSE v. UNION OF INDIA [RANJAN GOGOi, J.] changes as well as deletion of some of the recommendations. A It will, therefore, be necessary to specifically notice the said objections raised by the Union. Content of the Response of the Union Reconmendations (1) Object of Guidelines (a) To prevent arbitray use of The meaning of the v..ord pullic funds for advertising ~ "arbitrary" accorcing to the putlic authorities. Union needs to be more specifically defined. c (b) To exclude the po$ibility of Accorcing to the Union the any misuse of pl.blic funds on expression "polttical mileage" ad-.ertisement campaign in is inappropriate and should order to gain political mileage be deleted. by the political establishments. (2) 5 Princieles of Content Regulation (a) Clause (vii) under the 2na Accorcing to the Union this point of the 5 p-inciples should be done oliy when reconrnended by the the same is feasible and Conrntttee – Every effort whenever public irterest so shoud be mocfe to pre-test the demands. ; material in case of large scale I campaign vvith target I ; auciences. : (b) Clause (c)(i) under the 4ui According to the Union the ; point of the 5 principles of words "decide and announce i Cortent R~uation states that beforehand" may be deleted ! "The Governrnert shall decide as the sarre is not feasible I and ainounce beforehand, a since i$uance of advertisement deJ:Bnds on a . list of J)3rsonaltties on Wiose birth or death amiversaries, host of factors like availability · ad-.ertisements could be of f1.11ds, last minute changes released every ,ear and and the priortties of the specify Wiich gCJlfernment. Ministry/Depatment could release the same. c [2015) 5 S.C.R. (c) Clause (d) of the 4t1 point : of the 5 principles of Cortent i Regulation states that "as far as possible, during the 1 period prior to electioos, only ! those ad-.ertisements : required by law (such as pu~ic health and safety advisories or job and · 1 contract advertisements) alooe be released by the governments. According to the Ulioo i advertisement that serve public irterest may l::e issued at any point c:i tirre. (3) Orrbudsman The suooestion c:i the Corrm~ee wth regard to I appointment of the : Ombudsman is in the ' fdlo.ving terms: "The Governrrent shall appoint an Ombudsman who shall be an , emirent expert independent of the Government to receive complaints of violations of GLidelires and to : recomnend accordance Guidelires." action in. with the' · The Ulioo objects to the 1 sarre and seeks deletioo ·of the said ! reccmrendation as also • the recomrendation wth I regard to sepcrate ~ perfamance auc:it of each • Ministry and publicatioo of ' the result of sudl aud~. According to the Ulioo the Governrrent has inbuilt rl'a;hirery for · redressal and for audit 1 rn.rooses.

15. A consideration of the objections filed by the Union would go to show that the Union seriously disagrees with the recommendations of the Committee in respect of the following matters: (1) restricted publication of photographs of the COMMON CAUSE v. UNION OF INDIA [RANJAN GOGOi, J.] Government functionaries and political leaders alongwith 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 eve of the elections.

16. The rest of the objections are really in the nature of C suggestions which having been considered we are of the view that incorporation of the said suggestions made by the Union or otherwise would not make any substantial difference to the impact and effect of the said recommendations. It is the recommendations with regard to the publication of D photographs; appointment of Ombudsman; carrying out independent audit and embargo on advertisements during election time that will have to be specifically dealt with in some details.

17. The remaining recommendations of the Committee appear to be comprehensive and based on an analytical approach of the best practices prevailing in other jurisdictions. The said recommendations, in our considered view, would F serve public interest by enabling dissemination of information and spreading awareness amongst the citizens not only of the government policies; achievements made and targets to be reached but also the rights and entitlements of the citizens including the availability of a host of welfare measures. The G said recommendations, therefore, commend to the Court for acceptance and are accordingly accepted.

18. At this juncture we may very briefly deal with the with the situation prevailing in other jurisdictions across the H (2015] 5 S.C.R. A globe. While, undoubtedly there can be no blind adherence to the practices followed in other jurisdictions as what may be appropriate to another country may not be ideal in the Indian context, the correct approach will be to discern some of the best practices prevailing in such jurisdictions and thereafter B to test the relevance of the same to our own country. Though the recitals contained in the Report of the Committee do mention a consideration of such good practices prevailing in other jurisdictions there is however no discussion or even an C indication of the precise contents of the practices that were found by the Committee to be in existence in other countries. It has therefore become necessary for us to deal with the matter though very briefly. In this regard we may usefully, though illustratively, make a reference to certain practices prevailing o in Canada, United Kingdom, New Zealand and Australia.

19. Insofar as Canada(Ontario) is concerned, it appears that the object of issuing a governme~t advertisement is : (i) to inform the public of current or proposed government policies, E programs or services available to them; (ii) to inform the public of their rights and responsibilities under the law and (iii) to encourage or discourage specific social behaviour in public interest. Such advertisements are not to include the name, voice or image of any functionary of the State and the primary F objective of an advertisement ought not to be to foster a positive impression of the ruling government or a negative impression of any person, group or party critical of the government.

20. In some of the foreign jurisdictions there is a mechanism for review of advertisements on fixed parameters even before they are published and publication/issuance thereof only upon passing of the required test. In Australia and United Kingdom, there is an added emphasis on the cost COMMON CAUSE v. UNION OF INDIA [RANJAN GOGOi, J.] effectiveness of advertising campaigns. In Australia, A advertising campaigns of more than a particular pecuniary value i.e. 1 million Australian dollars require to undergo a cost , benefit analysis wherein the best options to achieve the intended objective of the campaign has to be determined before launching the same.

21. The good practices adopted in other jurisdictions as noticed above do find adequate reflection in the recommendations of the Committee which furtherJortify our conviction to adopt the same.

22. This will require the Court to consider the different aspects of a government advertisement campaign highlighted earlier on which we have reserved our comments. The first is with regard to publication of photographs of functionaries of D the State and political leaders alonwith the advertisement issued. There can be no manner of doubt that one government advertisement or the other coinciding with some event or occasion is published practically every day. Publication of the photograph of an individual be a State or party functionary not E only has the tendency of associating that particular individual with either the achievement(s) sought to be highlighted or being the architect of the benefits in respect of which information is sought to be percolated. Alternatively, programmes/targets F for the future as advertised carry the impression of being associated with the particular individual(s). Photographs, therefore, 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.

23. The legitimate and permissible, object of an advertisement, as earlier discussed, can always be achieved without publication of the photograph of any particular functionary either in the State of a political party. We are, A therefore, 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 alongwith the advertisements, there should be an exception only in the B 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 C of course carry the photograph of the departed leader.

24. Insofar as the recommendation with regard to the appointment of Ombudsman is concerned, we are of the view that for ironing out the creases that are bound to show from 0 time to time in the implementation of the present directions and to oversee such implementation the government should constitute a three member body consisting of persons with unimpeachable neutrality and impartiality and who have excelled in their respective fields. We could have but we refrain E from naming the specific persons and leave the said exercise to be performed by the Union Government.

25. Insofar as performance/special audit is concerned, we do not feel the necessity of any such special audit inasmuch F as the machinery available is adequate to ensure due performance as well as accountability and proper utilization of public money.

26. If Government advertisements adhere to the objects G and parameters mentioned above we do not feel the necessity of imposing a special curb on government advertisements on the eve of the elections, as suggested by the Committee.

27. In an earlier part of the present order we had H indicated the' power of the purse that Government COMMON CAUSE v. UNION OF INDIA [RANJAN GOGOi, J.] advertisements invariably involve. Needless to say the A concepts of fairness and even dispensation to all media/ publishing houses will have to be maintained by the Government be it at the Centre or the States.

28. We close the matters on the aforesaid note by B approving and adopting the recommendations of the Committee except what has been specifically indicated above with regard to (1) publication of photographs of the Government c functionaries and political leaders alongwith the advertisement( s). (2) appointment of an Ombudsman (3) the recommendation with regard to performance audit by each Ministry. (4) embargo on advertisements on the eve of the elections.

29. We also make it clear that the present directions E issued under Article 142 of the Constitution cannot be comprehensive and there are several aspects of the matter which may have escaped our attention at this stage. In this regard, we would like to clarify that it is not the intention of the Court to attempt to lay down infallible and all comprehensive directions to cover the issue at hand. The gaps, if any, we are confident would be filled up by the executive arm of the government itself inasmuch as the attainment of constitutional goals and values enshrined in Part IV of the Constitution is the G conjoint responsibility of the three organs of the State i.e. legislative, executive and the judiciary, as earlier discussed. Nidhi Jain Matters disposed of.