2015 (5) TMI 1162 - SC - Indian Laws

Government advertisements - Seeking an appropriate writ to restrain the Union of India and all State Governments from using public funds on Government advertisements - Prevention of misuse/wastage of public funds in connection with such advertisements - Appropriate guidelines - meaning of state under Article 12 of the Constitution - recommendations with regard to the appointment of Ombudsman - 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. HELD THAT - The issues arising in the writ petitions were considered by this Court in an earlier round of exhaustive hearings - This Court on consideration of the respective stands of the parties and by relying on the principles laid down in the decisions specifically referred to in the order dated 23.04.2014 inter alia held that there is no dispute that 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 programmes services and initiatives. It was further held that only such government advertisements which do not fulfil the above requisites will fall foul of the area of permissible advertisements. This Court acknowledged the fact that the dividing line between permissible advertisements that are a part of government messaging and advertisements that are politically motivated may at times gets blurred. 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 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 - 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 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 - Held that - Though the achievements of a Government should not be a matter of publicity and really 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 - Held that - 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 citizens as regards government programmes policies and achievements. Advertisements issued on the occasion of birth/death anniversaries and such other events - Held that - 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 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 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 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 - Held that - 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 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 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. 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/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. 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 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 indication of the precise contents of the practices that were found by the Committee to be in existence in other countries. 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 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 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 recommendations of the Committee is approved and adopted except what has been specifically indicated above with regard to (1) publication of photographs of the Government 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. Petition disposed off.

Summary

Issues Involved:

1. Misuse of public funds in government advertisements.
2. Need for guidelines to regulate government advertisements.
3. Applicability and enforcement of guidelines under Article 142.
4. Inclusion of photographs of government functionaries in advertisements.
5. Appointment of an Ombudsman for compliance.
6. Performance audit of ministries.
7. Restrictions on advertisements during elections.

Issue-wise Detailed Analysis:

1. Misuse of Public Funds in Government Advertisements:
The petitioners argued that government advertisements often serve to project individual functionaries or political parties, especially around election times, leading to wastage of public funds and misuse of governmental powers. This practice was seen as infringing on the fundamental rights under Articles 14 and 21 of the Constitution.

2. Need for Guidelines to Regulate Government Advertisements:
The Court acknowledged the beneficial role of government advertisements in informing the public but noted the potential for misuse. It emphasized the need for guidelines to distinguish between permissible government messaging and politically motivated advertisements. A Committee was constituted to draft such guidelines, which were later submitted for the Court's approval.

3. Applicability and Enforcement of Guidelines under Article 142:
The Court considered the necessity of enforcing the guidelines under Article 142 until appropriate legislation is enacted. The guidelines aimed to prevent arbitrary use of public funds and ensure advertisements serve public interest without political bias. The Court highlighted that guidelines should be consistent with Articles 14, 38, and 39 of the Constitution, promoting social and economic justice and avoiding unproductive expenditure.

4. Inclusion of Photographs of Government Functionaries in Advertisements:
The Committee recommended restricting the use of photographs of political leaders in advertisements to avoid personality cults. The Court modified this recommendation, allowing only the President, Prime Minister, and Chief Justice of India to decide on the inclusion of their photographs. Advertisements commemorating acknowledged personalities like Mahatma Gandhi were exempted.

5. Appointment of an Ombudsman for Compliance:
The Committee suggested appointing an Ombudsman to handle complaints and recommend actions for guideline violations. The Union Government objected, citing existing redressal mechanisms. The Court proposed a three-member body of neutral and impartial experts to oversee guideline implementation instead of a single Ombudsman.

6. Performance Audit of Ministries:
The Committee recommended a special performance audit to ensure compliance with the guidelines. The Union Government opposed this, arguing that existing audit mechanisms were sufficient. The Court agreed, finding no need for an additional special audit.

7. Restrictions on Advertisements During Elections:
The Committee suggested limiting advertisements before elections to those required by law. The Union Government argued that advertisements serving public interest should be allowed anytime. The Court decided not to impose special restrictions on advertisements during elections, provided they adhere to the established guidelines.

Conclusion:
The Court approved and adopted the Committee's recommendations with modifications, particularly regarding the inclusion of photographs, appointment of an oversight body, and performance audits. It emphasized fairness and even dispensation to all media houses in awarding advertisements. The directions issued under Article 142 were intended to be interim measures until the legislature or executive enacts appropriate policies. The Court recognized the conjoint responsibility of the legislative, executive, and judiciary in achieving constitutional goals and values.