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TMI Blog2015 (5) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.04.2014, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvey necessary information to the citizens with regard to various welfare and progressive measures as also their rights and entitlements, however, had contended that in the garb of communicating with the people, in many instances, undue political advantage and mileage is sought to be achieved by personifying individuals and crediting such individuals or political leaders (who are either from a political party or government functionaries) as being responsible for various government achievements and progressive plans. According to the petitioners such practice becomes rampant on the eve of the elections. Such advertisements not only result in gross wastage of public funds but constitute misuse of governmental powers besides derogating the fundamental rights of a large section of the citizens as guaranteed by Article 14 and 21 of the Constitution of India. 3. The writ petitions, filed as public interest litigations, were resisted by the Union of India primarily on the ground that the issues sought to be raised pertain to governmental policies and executive decisions in respect of which it may not be appropriate for this Court to lay down binding guidelines under Article 142. The deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmittee may be usefully extracted hereinbelow:- "GUIDELINES ON CONTENT REGULATION OF GOVERNMENT ADVERTISING (1) These Guidelines shall be called the Government Advertisement (Content Regulation) Guidelines 2014. (2) They shall come into force with effect from...... 2. APPLICATION: (1) These Guidelines shall apply to all Government advertisements other than Classified Advertisements. (2) These Guidelines shall apply to the content of all Government Advertising till a suitable legislation is enacted by the Government to prevent the misuse of public funds on advertisements to gain political mileage as distinct from legitimate Government messaging. (3) These Guidelines shall apply to all - (a) institutions of Government; (b) public sector undertakings; (c) local bodies and other autonomous bodies/organizations established under a Statute. 3. DEFINITIONS: In these Guidelines unless the context otherwise requires: (a) "Classified Advertisements" include public notices, tenders, recruitment notices, statutory notifications. (b) "DAVP Guidelines" means the existing guidelines of the Directorate of Advertising and Visual Publicity of the Ministry of Information a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vertising space in any media, the Government shall be guided by the following principles, namely:- (1) Advertising Campaigns to be related to Government responsibilities: While it is the duty of the Government to provide the public with timely, accurate, clear, objective and complete information about its policies, programmes, services and initiatives since the public has a right to such information, the content of government advertisements should be relevant to the governments' constitutional and legal obligations as well as the citizens' rights and entitlements. ( 2) Advertisement materials should be presented in an objective, fair and accessible manner and be designed to meet the objectives of the campaign: (i) The material shall be presented in a fair and objective manner and shall be capable of fulfilling the intended objectives; (ii) Government shall exercise due caution while deciding the content, layout, size and design of the message including the target area and the creative requirement of the intended communication in order to ensure that the maximum reach and impact are achieved in the most cost effective manner; (iii) Content of advertisement must enable th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndertaken in an efficient and cost-effective manner; (c) The Government shall - (i) decide and announce beforehand, a list of personalities on whose birth or death anniversaries, advertisements could be released every year and specify which Ministry/Department could release the same; (ii) avoid the issue of multiple advertisements by different departments and PSUs of the same Government in Commemorative Advertisements and shall issue a single advertisement only; (d) Though advertising by governments should remain regulated all the time, it is particularly important to scrupulously follow these principles before and during the elections. As far as possible, during the period prior to elections, only those advertisements required by law (such as public health and safety advisories or job and contract advertisements) alone be released by governments; (e) Advertisement campaigns should only be need based; and (f) In case of large volume advertisement campaigns, post-campaign impact assessment is necessary to be included in the planning process itself and shall identify the indicators to measure success when the campaign has ended. (5) Government advertising must comply wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that reasonableness and fairness consistent with Article 14 of the Constitution would be the ultimate test of all State activities proceeded to hold that the deployment of public funds in any Government activity which is not connected with a public purpose would justify judicial intervention. We would like to say something more. Part IV of the Constitution is as much a guiding light for the Judicial organ of the State as the Executive and the Legislative arms, all three being integral parts of the "State" within the meaning of Article 12 of the Constitution. Naresh Shridhar Mirajkar & Ors. Vs. State of Maharashtra & Ors. -AIR 1967 SC 1=(1966) 3 SCR 744 - Kesavananda Bharati Sripadagalvaru Vs. State of Kerala & Anr. - (1973) 4 SCC 225 (Para 1703)A policy certainly cannot be axed for its alleged failure to comply with any of the provisions of Part IV. Neither can the Courts charter a course, merely on the strength of the provisions of the said Part of the Constitution, if the effect thereof would be to lay down a policy. However, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r field covered by the advertisement and the 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 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint of the 5 principles recommended by the Committee - Every effort should be made to pre-test the material in case of large scale campaign with target audiences. According to the Union this should be done only when the same is feasible and whenever public interest so demands. (b) Clause (c)(i) under the 4th point of the 5 principles of Content Regulation states that "The Government shall decide and announce beforehand, a list of personalities on whose birth or death anniversaries, advertisements could be released every year and specify which Ministry/Department could release the same. According to the Union the words "decide and announce beforehand" may be deleted as the same is not feasible since issuance of advertisement depends on a host of factors like availability of funds, last minute changes and the priorities of the government. (c) Clause (d) of the 4th point of the 5 principles of Content Regulation states that "as far as possible, during the period prior to elections, only those advertisements required by law (such as public health and safety advisories or job and contract advertisements) alone be released by the governments. According to the Union advertisement t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the with the situation prevailing in other jurisdictions across the 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 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. 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 in Canada, United Kingdom, New Zealand and Australia. 19. Insofar as Canada(Ontario) is concerned, it appears that the object of issuing a government advertisement is : (i) to inform the public of current or proposed government policies, programs or services avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 respe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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