PIL- using public funds for advertising in a manner so as to project the personalities, parties or particular governments and for laying down binding guidelines - DAVP guidelines not suitable to deal with situation - Apex court appointed a committee to that effect =
These
petitions have been brought as a class action by certain registered
societies viz., Common Cause and Centre for Public Interest Litigation
seeking a writ in the nature of mandamus restraining the Union of India and
all the State Governments from using public funds for advertising in a
manner so as to project the personalities, parties or particular
governments and for laying down binding guidelines which will prevent the
abuse of public funds by such advertising.=
Thus, it is vividly clear that
the DAVP guidelines, which are available in the public domain, only deal
with the eligibility and empanelment of the newspapers/journals or other
media, their rates of payment, and such like matters. Besides, it only
specifies that in releasing advertisement to newspapers/journals, the DAVP
would not take into account the political affiliation or editorial policies
of newspapers/journals. Hence, it is evident that there is no policy or
guideline to regulate the content of Government advertisements and to
exclude the possibility of any mala fide use or misuse of public funds on
advertisements in order to gain political mileage by the political
establishment.=
There are five principles laid down in Guidelines On Information and
Advertising Campaigns by Australian Government Departments and Agencies,
which will be applicable to all Government advertising campaigns.
Principle 1: Campaigns should be relevant to government responsibilities.
Principle 2: Campaign materials should be presented in an objective, fair,
and accessible manner and be designed to meet the objectives
of the campaign.
Principle 3: Campaign materials should be objective and not directed at
promoting party political interests.
Principle 4: Campaigns should be justified and undertaken in an efficient,
effective and relevant manner.
Principle 5: Campaigns must comply with legal requirements and procurement
policies and procedures.
24) In these circumstances, conceding that the existing DAVP
policy/guidelines do not govern the issues raised in these writ petitions
and do not lay down any criteria for the advertisements to qualify for
“public purpose” as opposed to partisan ends and political mileage, there
is a need for substantive guidelines to be issued by this Court until the
legislature enacts a law in this regard. The petitioners through their
written submissions have proposed guidelines in this regard, however, on
going through the same, we recognized that the petitioners herein have
basically adopted the proposed guidelines verbatim from other jurisdiction
viz., Australia. Accordingly, we do not think that it will be appropriate
for this Court to adopt the guidelines of other country without application
of mind and appreciation of situation in our country.
25) Keeping in mind that the time available to this Court is limited and
the subject matter for which guidelines are to be framed is sensational and
significant, we deem it proper to constitute a Committee consisting of
three members to undertake the task of suggesting guidelines to this Court
after an intricate study of all the best practices in public advertisements
in different jurisdictions and to submit the same before this Court
preferably within a period of three months. The Committee will consist of
the following members:
1) Prof. (Dr.) N.R. Madhava Menon,
former Director, National Judicial Academy, Bhopal
2) Mr. T.K. Viswanathan,
former Secretary General, Lok Sabha
3) Mr. Ranjit Kumar, Senior Advocate
In order to coordinate and render assistance to the Committee, we appoint
the Secretary, Ministry of Information and Broadcasting as Member
Secretary.
26) The matter be posted for further direction before this Court on the
expiry of three months from today along with the suggestions as may be
submitted by the Committee pursuant to this judgment.
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41450
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
1 WRIT PETITION (CIVIL) NO. 13 OF 2003
Common Cause .... Petitioner (s)
Versus
Union of India ....
Respondent(s)
2
3 WITH
4
5 WRIT PETITION (CIVIL) NO. 197 OF 2004
J U D G M E N T
P.Sathasivam, CJI.
1) These writ petitions are filed in public interest, under Article 32
of the Constitution of India, to throw light on the enduring issue of use
of publicly funded government advertising campaigns as de facto political
advertising canvass which is violative of Articles 14 and 21 of the
Constitution. With the increasing awareness and emphasis on transparency in
the governance of the country, the public senses the need to restrain the
misuse of public funds for furthering the political motives. These
petitions have been brought as a class action by certain registered
societies viz., Common Cause and Centre for Public Interest Litigation
seeking a writ in the nature of mandamus restraining the Union of India and
all the State Governments from using public funds for advertising in a
manner so as to project the personalities, parties or particular
governments and for laying down binding guidelines which will prevent the
abuse of public funds by such advertising.
2) The immediate cause of filing these writ petitions in 2003 and 2004
respectively is stated to be the numerous full page advertisements in the
print media and repeated advertisements in the electronic media by the
Central Government, State Governments and its agencies, instrumentalities
including public sector undertakings which project political personalities
and proclaim the achievements of particular political governments and
parties at the expense of the public exchequer. It is also the assertion
of the petitioners that such advertisements become more blatant and assumes
alarming proportions just before the announcement of the general elections.
Accordingly, it is the stand of the petitioners that such deliberate
misuse of public funds by the Central Government, State Governments, their
Departments and instrumentalities of the State is destructive to the rule
of law. Further, it allows the parties in power to patronize publications
and media organizations affiliated to the parties in power and also to get
favourable media coverage by selective dispersal of the advertising
bonanza.
3) It is projected that the use of public funds for advertising by
public authorities to project particular personalities, parties or
governments without any attendant public interest is mala fide and
arbitrary and amounts to violation of Article 14 of the Constitution of
India. It is also highlighted that use and wastage of public funds in
political motivated advertisements designed to project particular
personality, party or Government by wasting public money is also in
violation of the fundamental rights under Article 21 because of diversion
of resources by the governments for partisan interests. Such violation,
therefore, attracts the remedy under Article 32 for the enforcement of
fundamental rights of the citizens. It is the stand of the petitioners
herein that a writ of mandamus in such a situation, if it is to be
effective, needs to be accompanied by guidelines regulating the same and we
accede to the stand of the petitioners.
4) On the other hand, Union of India and various States submitted the
necessity of advertisement in the print and electronic media for
dissemination of information in a democratic setup and further pointed out
that since similar issues have already been raised earlier and adjudicated
upon by this Court as also some High Courts such as Bombay and Delhi, hence
akin grounds should not be entertained in these petitions. With these
averments and in the light of the earlier decision of this Court in Manzoor
Ali Khan & Anr. vs. U.O.I. & Ors. [Writ Petition (Civil) No. 83 of 2005]
decided on 10.01.2011, the respondents herein prayed for dismissal of both
the writ petitions.
5) Heard Ms. Meera Bhatia, Mr. Prashant Bhushan, learned counsel for the
petitioners and Mr. K. Radhakrishnan, learned senior counsel for the
respondent-Union of India. We also heard respective counsel for various
States.
Discussion:
6) Let us, at the outset, consider the objection raised by the
respondents regarding the maintainability of the petitions primarily before
we would deliberate on the contentions on the merits.
7) In the counter affidavit filed on behalf of the Union of India, it
has been stated that the issues raised in the present petitions are no
longer res integra but are in fact res judicata in the light of earlier
decision of this Court in Manzoor Ali Khan (supra) and other matters
decided by the High Court of Delhi in Umesh Mohan Sethi vs. Union of India
& Anr. [Writ Petition (Civil) No. 2926 of 2012] decided on 12.12.2012 and
the Bombay High Court in Laxman Moreshwar Mahurkar vs. Balkrishna Jagnnath
Kinikar and Ors. AIR 1961 Bom 167.
8) In response to the objection raised, learned counsel for the
petitioners submitted that the principle of constructive res judicata
cannot be made applicable in each and every public interest litigation and
relied on the judgment of this Court in Rural Litigation and Entitlement
Kendra vs. State of UP (1989) Supp (1) SCC 504, wherein it was held that:-
“16. ...We may not be taken to have said that for public interest
litigations, procedural laws do not apply. At the same time it has to
be remembered that every technicality in the procedural law is not
available as a defence when a matter of grave public importance is for
consideration before the Court. Even if it is said that there was a
final order, in a dispute of this type it would be difficult to
entertain the plea of res judicata…”
Thus, in the light of the above, learned counsel for the petitioners
submitted that the decision rendered in Manzoor Ali Khan (supra) should not
prevent this Court from deciding the issues raised in the present
petitions.
9) Further, it is the stand of the petitioners that a petition filed in
public interest cannot be held to be an adversarial system of adjudication
and the petitioners in their case merely brought it to the notice of the
Court as to how and in what manner the public interest is being jeopardized
by arbitrary and capricious action of the authorities and, therefore, the
principle of constructive res judicata cannot be made applicable in each
and every public interest litigation, irrespective of the nature of
litigation itself and its impact on the society and the larger public
interest, which is being served. Placing reliance on the reasoning
rendered in the aforesaid verdict the objection raised herein stands
overruled.
10) In the light of this, now let us examine the submissions of the
petitioners on merits. The decision of this Court in Manzoor Ali Khan
(supra) was based on two premises, firstly, that guideline governing the
same subject matter already exists as framed by the Directorate of
Advertising and Visual Publicity (DAVP) as well as Department of
Information in each of the States and secondly, that the matter is squarely
covered against the petitioners in view of the judgment of the Bombay High
Court in the case of Laxman Moreshwar Mahurkar (supra). It is the stand of
the petitioners that the DAVP guidelines relied upon by this Court in the
Manzoor Ali Khan (supra) and by the respondents in its counter affidavit in
the present case are irrelevant for the consideration of the issues raised
in the present writ petitions. Further, it was submitted that the decision
in Laxman Moreshwar Mahurkar (supra) is clearly distinguishable with the
facts and issues raised in the present public interest litigation. We
shall analyse both these grounds in detail in the ensuing paragraphs.
11) Primarily, objection against admitting these writ petitions was that
there exists substantive guidelines regulating the Governments’
advertisements issued by the DAVP and thus the task of this Court will be
rendered infructuous. Mr. K. Radhakrishnan, learned senior counsel for the
Union of India reiterated the stand taken by the Government in their
counter-affidavit filed in the year 2003 as well as in 2013 and brought to
our notice the New Advertisement Policy [with effect from 02.10.2007]
formulated by the Ministry of Information and Broadcasting, DAVP, which is
the nodal agency of the Government of India for advertisement by various
Ministries and organizations of Government of India including public sector
undertakings and autonomous bodies. It is seen from the Advertisement
Policy of 2007 that the primary objective of the Government is to secure
the widest possible coverage of the intended content or message through
newspapers and journals of current affairs as well as Science, Art,
Literature, Sports, Films, Cultural Affairs, etc. The Policy further
states that in releasing advertisements to newspapers/journals, DAVP does
not take into account the political affiliation or editorial policies of
newspapers/journals. However, it states that DAVP would avoid releasing
advertisements to newspapers/journals, which incite or tend to incite
communal passion, preach violence, offend the sovereignty and integrity of
India or socially accepted norms of public decency and behaviour. The
Policy dated 02.10.2007 supersedes all earlier orders and the same is the
New Advertisement Policy of the Government of India. The said Policy
contains 27 clauses. A reading of these clauses shows that the Government
advertisements are not intended to give financial assistance to the
newspapers/journals. DAVP maintains a list of newspapers/journals approved
for release of advertisements by empanelling acceptable
newspapers/journals. It further reinforces that due care is taken to
empanel newspapers/journals having readership from different sections of
the society in different parts of the country. The Policy also makes it
clear that all Central Ministries/Departments/attached and Subordinate
offices/field offices shall route their advertisements, including display
advertisements, through DAVP. It also maintains a Panel Advisory Committee
(PAC) for considering applications of newspapers/journals for being
empanelled for publishing Government advertisements. This Committee shall
be headed by the Director General, DAVP and shall include the Additional
Director General (Media & Communication)/Deputy Director General (Media &
Communication) in the Press Information Bureau (PIB), Press
Registrar/Deputy Press Registrar and Director/Deputy Secretary/Under
Secretary in the Ministry of Information and Broadcasting dealing with
Print Media. The Committee will also have one representative each from the
Association of big, medium and small newspapers. The recommendations of
the PAC as accepted by the DG, DAVP regarding empanelment of a newspaper
shall be final. It also shows that all empanelled newspapers/publications
will be asked to enter into a rate contract, which will be valid for a
period of three years. It further provides that the rate structure for
payment against advertisements released by DAVP will be worked out as per
the recommendations of the Rate Structure Committee. The rates depend on
certified circulation of a newspaper.
12) A perusal of various clauses in the Advertisement Policy of the
Government of India dated 02.10.2007 as elaborated in the aforesaid
paragraph shows that all the norms as mentioned in various clauses are to
be adhered to in overall media strategy of the Ministries and Departments
to ensure maximum coverage at optimum cost. Thus, it is vividly clear that
the DAVP guidelines, which are available in the public domain, only deal
with the eligibility and empanelment of the newspapers/journals or other
media, their rates of payment, and such like matters. Besides, it only
specifies that in releasing advertisement to newspapers/journals, the DAVP
would not take into account the political affiliation or editorial policies
of newspapers/journals. Hence, it is evident that there is no policy or
guideline to regulate the content of Government advertisements and to
exclude the possibility of any mala fide use or misuse of public funds on
advertisements in order to gain political mileage by the political
establishment.
13) As far as the second objection with regard to applicability of the
decision in Laxman Moreshwar Moharkar (supra) is concerned, we have
analyzed the same and are of the cogent view that the said decision of the
Bombay High Court is clearly distinguishable from the facts and issues
raised in the present petitions. The aforesaid case pertains to
applicability or non-applicability of a particular rule viz., Rule 189 of
the Law Officers (Conditions of Service) Rules and Rules for the Conduct of
the Legal Affairs of the Government whereas the issues raised in these writ
petitions are not pursuant to violation of any specific rule or law rather
a question of public importance has been raised as to whether the State,
which is duty bound to allocate its resources for the maximum public good,
can cavalierly spend huge sums of public funds in order to derive political
mileage. Thus, the ratio laid down in Laxman Moreshwar Moharkar (supra) is
not relevant for consideration of issues raised in these writ petitions.
14) Learned senior counsel for the respondent - UOI also made reference
to the decision in Umesh Mohan Sethi (supra) rendered on 12.12.2012 by the
Delhi High Court which pertained to similar issues as raised in these writ
petitions to substantiate their stand. In Umesh Mohan Sethi (supra), it was
held that if the Government purports to spend money for a purpose which it
characterizes as a public purpose though in point of fact it is not a
public purpose, the proper place to criticize the action of the Government
would be the legislature or the Appropriation Committee and Courts are not
the forum in which the Government’s action could be sought to be criticized
or restrained. Besides, the Delhi High Court relied on the decision of
Manzoor Ali Khan (supra) rendered by this Court and dismissed the petition
as misconceived.
15) Learned counsel for the petitioners responded to this contention by
asserting that any government activity has to satisfy the test of
reasonableness and public interest and while dealing with public funds and
property, public interest is of paramount consideration. In Kasturi Lal
Lakshmi Reddy vs. State of J&K (1980) 4 SCC 1, this Court has held as
under:-
“12. …Any action taken by the Government with a view to giving effect
to any one or more of the Directive Principles would ordinarily,
subject to any constitutional or legal inhibitions or other over-
riding considerations, qualify for being regarded as reasonable,
while an action which is inconsistent with or runs counter to a
Directive Principle would incur the reproach of being unreasonable.”
*** *** ***
“14. Where any Governmental action fails to satisfy the test of
reasonableness and public interest discussed above and is found to be
wanting in the quality of reasonableness or lacking in the element of
public interest, it would be liable to be struck down as invalid. It
must follow as a necessary corollary from this proposition that the
Government cannot act in a manner which would benefit a private party
at the cost, of the State; such an action would be both unreasonable
and contrary to public interest…..”
16) In Shrilekha Vidyarthi vs. State of UP (1991) 1 SCC 212, this Court
unequivocally rejected the argument based on the theory of absolute
discretion of the administrative authorities and immunity of their action
from judicial review and observed:
“It can no longer be doubted at this point of time that Article of the
Constitution of India applies also to matters of Governmental policy
and if the policy or any action of the government, even in contractual
matters, fails to satisfy the test of reasonableness, it would be
unconstitutional.”
Similar reasoning was rendered in Ramana Dayaram Shetty vs. The
International Airport Authority of India (1979) 3 SCR 1014 and in Col. A.S.
Sangwan vs. Union of India (1980) Supp SCC 559. Hence, it was submitted
that judicial review of Government policies is permissible if it does not
satisfy the test of reasonableness and against the public interest.
17) Although, as asserted by the respondents herein that it is not the
prima facie jurisdiction of this Court to examine what constitutes as
“public purpose” or not however, as per judicial precedents in Kasturi Lal
Lakshmi Reddy (supra) and other case laws as stated above, this Court is
duty bound to interfere whenever the Government acts in a manner, which is
unreasonable and contrary to public interest. In succinct, the Government
cannot act in a manner, which would benefit a private party at the cost of
the State; such an action would be both unreasonable and contrary to public
interest. The present writ petitions challenge the Government
advertisements of political nature at the cost of the public exchequer on
the ground that they are in violation of Articles 14 and 21 of the
Constitution. We shall examine and scrutinize the situation as portrayed by
the petitioners as to whether there is need for specific guidelines to be
issued by this Court to regulate the same.
18) The petitioners further submitted that advertisement campaigns are
undertaken ostensibly to advertise certain public works and almost all
these advertisements contain photographs of the Ministers and important
political personalities of the Government, which clearly show that these
advertisement are framed for the purpose of highlighting the achievements
of the incumbent government and aim to create an impression that those
particular political personalities were directly responsible for providing
public benefits to the people. In succinct, the use of public office and
public funds for personal, political or partisan purposes is clearly
malafide, illegal and not permissible under the Constitution. Thus, it is
the stand of the petitioners that expenditure on such advertisements is
blatant misuse of public funds by the Central Government, State
Governments, their departments and instrumentalities of the State as it
fosters wastage of scarce funds of the exchequer in promoting private
partisan interests as against public interest that is destructive of the
rule of law.
19) Conversely, the Government of India, in their counter-affidavit
claimed that 60% of the advertisements released by the Directorate of
Advertising and Visual Publicity (DAVP) on behalf of various
Ministries/Departments/Public Sector Undertakings (PSUs) of the Central
Government relate to classified or display/classified category such as
UPSC/SSC or recruitment, tender and public notices, etc. The respondents
asserted that government advertisements sometime carry messages from
national leaders, Ministers and dignitaries accompanied with their
photographs. However, it is their stand that the purpose of such
advertisements is not to give personal publicity to the leaders or to the
political parties they belong to rather the objective is to let the people
know and have authentic information about the progress of the
programmes/performance of the government they elected and form informed
opinions, which is one of the fundamental rights of the citizens in our
democracy as enshrined in the Constitution of India. The composition of
advertisements issued by DAVP during the years 2000-01, 2001-02 and 2002-03
in respect of various Ministries/Departments is given in the form of
annexure to the counter-affidavit. It is the stand of the Government that
the objective of displaying the advertisements issued by DAVP on behalf of
the Ministries/Departments of the Government of India is to create
awareness among the people about various policies, programmes and
achievements of the Government and advertising is an integral part of
dissemination of information, which is essential in a democracy.
20) The contentions raised by the respondents are based on clear
principle that is bound to be accepted on the face of it. The stand that
Government advertising is a mode for the Government to disseminate to the
members of the public, of information about a government program, policy or
initiative, or about any public health or safety or other matter(s), that
is funded by or on behalf of a Government agency, is an outright fact and
is a must in our democratic setup. This Court, in its Constitutional
wisdom, understands that it is only through such advertisements that the
Government communicates with its citizens which plays an important role in
efficiently and effectively achieving the goals of public policy.
21) At the same time, the stand of the petitioners in these writ
petitions is also not entirely misconceived. Since the 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, programs, services and initiatives, however, when
these requisites are not fulfilled in a Government advertisement than the
whole purpose would be frustrated. The petitioners through annexures have
brought to the notice of this Court numerous Government advertisements
released by the Central Government, State Governments, their departments
and instrumentalities of the State which fail to disseminate any
information to the public of their rights and entitlements in the
Government policies rather only glorifies the accomplishments of a
particular Government. The petitioners herein have disputed only such
advertisements, which they plead to be wastage of public exchequer for
political mileage. While the boundary lines can blur, we need to
distinguish between the advertisements that are part of Government
messaging and daily business and advertisements that are politically
motivated. It is yet further pleaded that even the Election Commission of
India though had expressed concern but could not do anything owing to lack
of jurisdiction in the matter.
22) Although this issue of concern may be new to India but not for other
countries. Governments around the world spend huge amount of money yearly
for advertisements in their local media and most of the countries have
faced similar fate of situation as portrayed in these petitions. The
solution to this crisis was arrived at by framing the Government
advertising guidelines, which set out the policies and processes that apply
to Government advertisement. Few countries which adopted Government
advertising policies are as under:-
Australia
Australia adopted new policy to regulate Government advertisement in
response to nearly a decade of abuse, during which public advertising was
corruptly used to promote a partisan agenda. The focus of policy
recommendations is to depoliticize public advertising, prevent conflict of
interest, and devolve power in such a way that no person or group can
easily exploit public advertising funds for individual or political gains.
Canada
Canada also has strict conflict of interest guidelines, which promote
transparency, accountability and separation of authority to discourage
abuse of public advertising funds for individual, financial or political
gains.
Similar policies exist in almost all developed countries to check the abuse
of Government advertisements for private benefits.
23) There are five principles laid down in Guidelines On Information and
Advertising Campaigns by Australian Government Departments and Agencies,
which will be applicable to all Government advertising campaigns.
Principle 1: Campaigns should be relevant to government responsibilities.
Principle 2: Campaign materials should be presented in an objective, fair,
and accessible manner and be designed to meet the objectives
of the campaign.
Principle 3: Campaign materials should be objective and not directed at
promoting party political interests.
Principle 4: Campaigns should be justified and undertaken in an efficient,
effective and relevant manner.
Principle 5: Campaigns must comply with legal requirements and procurement
policies and procedures.
24) In these circumstances, conceding that the existing DAVP
policy/guidelines do not govern the issues raised in these writ petitions
and do not lay down any criteria for the advertisements to qualify for
“public purpose” as opposed to partisan ends and political mileage, there
is a need for substantive guidelines to be issued by this Court until the
legislature enacts a law in this regard. The petitioners through their
written submissions have proposed guidelines in this regard, however, on
going through the same, we recognized that the petitioners herein have
basically adopted the proposed guidelines verbatim from other jurisdiction
viz., Australia. Accordingly, we do not think that it will be appropriate
for this Court to adopt the guidelines of other country without application
of mind and appreciation of situation in our country.
25) Keeping in mind that the time available to this Court is limited and
the subject matter for which guidelines are to be framed is sensational and
significant, we deem it proper to constitute a Committee consisting of
three members to undertake the task of suggesting guidelines to this Court
after an intricate study of all the best practices in public advertisements
in different jurisdictions and to submit the same before this Court
preferably within a period of three months. The Committee will consist of
the following members:
1) Prof. (Dr.) N.R. Madhava Menon,
former Director, National Judicial Academy, Bhopal
2) Mr. T.K. Viswanathan,
former Secretary General, Lok Sabha
3) Mr. Ranjit Kumar, Senior Advocate
In order to coordinate and render assistance to the Committee, we appoint
the Secretary, Ministry of Information and Broadcasting as Member
Secretary.
26) The matter be posted for further direction before this Court on the
expiry of three months from today along with the suggestions as may be
submitted by the Committee pursuant to this judgment.
.…….…………………………CJI.
(P. SATHASIVAM)
………….…………………………J.
(RANJAN GOGOI)
………….…………………………J.
(N.V. RAMANA)
NEW DELHI;
APRIL 23, 2014.
-----------------------
24
These
petitions have been brought as a class action by certain registered
societies viz., Common Cause and Centre for Public Interest Litigation
seeking a writ in the nature of mandamus restraining the Union of India and
all the State Governments from using public funds for advertising in a
manner so as to project the personalities, parties or particular
governments and for laying down binding guidelines which will prevent the
abuse of public funds by such advertising.=
Thus, it is vividly clear that
the DAVP guidelines, which are available in the public domain, only deal
with the eligibility and empanelment of the newspapers/journals or other
media, their rates of payment, and such like matters. Besides, it only
specifies that in releasing advertisement to newspapers/journals, the DAVP
would not take into account the political affiliation or editorial policies
of newspapers/journals. Hence, it is evident that there is no policy or
guideline to regulate the content of Government advertisements and to
exclude the possibility of any mala fide use or misuse of public funds on
advertisements in order to gain political mileage by the political
establishment.=
There are five principles laid down in Guidelines On Information and
Advertising Campaigns by Australian Government Departments and Agencies,
which will be applicable to all Government advertising campaigns.
Principle 1: Campaigns should be relevant to government responsibilities.
Principle 2: Campaign materials should be presented in an objective, fair,
and accessible manner and be designed to meet the objectives
of the campaign.
Principle 3: Campaign materials should be objective and not directed at
promoting party political interests.
Principle 4: Campaigns should be justified and undertaken in an efficient,
effective and relevant manner.
Principle 5: Campaigns must comply with legal requirements and procurement
policies and procedures.
24) In these circumstances, conceding that the existing DAVP
policy/guidelines do not govern the issues raised in these writ petitions
and do not lay down any criteria for the advertisements to qualify for
“public purpose” as opposed to partisan ends and political mileage, there
is a need for substantive guidelines to be issued by this Court until the
legislature enacts a law in this regard. The petitioners through their
written submissions have proposed guidelines in this regard, however, on
going through the same, we recognized that the petitioners herein have
basically adopted the proposed guidelines verbatim from other jurisdiction
viz., Australia. Accordingly, we do not think that it will be appropriate
for this Court to adopt the guidelines of other country without application
of mind and appreciation of situation in our country.
25) Keeping in mind that the time available to this Court is limited and
the subject matter for which guidelines are to be framed is sensational and
significant, we deem it proper to constitute a Committee consisting of
three members to undertake the task of suggesting guidelines to this Court
after an intricate study of all the best practices in public advertisements
in different jurisdictions and to submit the same before this Court
preferably within a period of three months. The Committee will consist of
the following members:
1) Prof. (Dr.) N.R. Madhava Menon,
former Director, National Judicial Academy, Bhopal
2) Mr. T.K. Viswanathan,
former Secretary General, Lok Sabha
3) Mr. Ranjit Kumar, Senior Advocate
In order to coordinate and render assistance to the Committee, we appoint
the Secretary, Ministry of Information and Broadcasting as Member
Secretary.
26) The matter be posted for further direction before this Court on the
expiry of three months from today along with the suggestions as may be
submitted by the Committee pursuant to this judgment.
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41450
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
1 WRIT PETITION (CIVIL) NO. 13 OF 2003
Common Cause .... Petitioner (s)
Versus
Union of India ....
Respondent(s)
2
3 WITH
4
5 WRIT PETITION (CIVIL) NO. 197 OF 2004
J U D G M E N T
P.Sathasivam, CJI.
1) These writ petitions are filed in public interest, under Article 32
of the Constitution of India, to throw light on the enduring issue of use
of publicly funded government advertising campaigns as de facto political
advertising canvass which is violative of Articles 14 and 21 of the
Constitution. With the increasing awareness and emphasis on transparency in
the governance of the country, the public senses the need to restrain the
misuse of public funds for furthering the political motives. These
petitions have been brought as a class action by certain registered
societies viz., Common Cause and Centre for Public Interest Litigation
seeking a writ in the nature of mandamus restraining the Union of India and
all the State Governments from using public funds for advertising in a
manner so as to project the personalities, parties or particular
governments and for laying down binding guidelines which will prevent the
abuse of public funds by such advertising.
2) The immediate cause of filing these writ petitions in 2003 and 2004
respectively is stated to be the numerous full page advertisements in the
print media and repeated advertisements in the electronic media by the
Central Government, State Governments and its agencies, instrumentalities
including public sector undertakings which project political personalities
and proclaim the achievements of particular political governments and
parties at the expense of the public exchequer. It is also the assertion
of the petitioners that such advertisements become more blatant and assumes
alarming proportions just before the announcement of the general elections.
Accordingly, it is the stand of the petitioners that such deliberate
misuse of public funds by the Central Government, State Governments, their
Departments and instrumentalities of the State is destructive to the rule
of law. Further, it allows the parties in power to patronize publications
and media organizations affiliated to the parties in power and also to get
favourable media coverage by selective dispersal of the advertising
bonanza.
3) It is projected that the use of public funds for advertising by
public authorities to project particular personalities, parties or
governments without any attendant public interest is mala fide and
arbitrary and amounts to violation of Article 14 of the Constitution of
India. It is also highlighted that use and wastage of public funds in
political motivated advertisements designed to project particular
personality, party or Government by wasting public money is also in
violation of the fundamental rights under Article 21 because of diversion
of resources by the governments for partisan interests. Such violation,
therefore, attracts the remedy under Article 32 for the enforcement of
fundamental rights of the citizens. It is the stand of the petitioners
herein that a writ of mandamus in such a situation, if it is to be
effective, needs to be accompanied by guidelines regulating the same and we
accede to the stand of the petitioners.
4) On the other hand, Union of India and various States submitted the
necessity of advertisement in the print and electronic media for
dissemination of information in a democratic setup and further pointed out
that since similar issues have already been raised earlier and adjudicated
upon by this Court as also some High Courts such as Bombay and Delhi, hence
akin grounds should not be entertained in these petitions. With these
averments and in the light of the earlier decision of this Court in Manzoor
Ali Khan & Anr. vs. U.O.I. & Ors. [Writ Petition (Civil) No. 83 of 2005]
decided on 10.01.2011, the respondents herein prayed for dismissal of both
the writ petitions.
5) Heard Ms. Meera Bhatia, Mr. Prashant Bhushan, learned counsel for the
petitioners and Mr. K. Radhakrishnan, learned senior counsel for the
respondent-Union of India. We also heard respective counsel for various
States.
Discussion:
6) Let us, at the outset, consider the objection raised by the
respondents regarding the maintainability of the petitions primarily before
we would deliberate on the contentions on the merits.
7) In the counter affidavit filed on behalf of the Union of India, it
has been stated that the issues raised in the present petitions are no
longer res integra but are in fact res judicata in the light of earlier
decision of this Court in Manzoor Ali Khan (supra) and other matters
decided by the High Court of Delhi in Umesh Mohan Sethi vs. Union of India
& Anr. [Writ Petition (Civil) No. 2926 of 2012] decided on 12.12.2012 and
the Bombay High Court in Laxman Moreshwar Mahurkar vs. Balkrishna Jagnnath
Kinikar and Ors. AIR 1961 Bom 167.
8) In response to the objection raised, learned counsel for the
petitioners submitted that the principle of constructive res judicata
cannot be made applicable in each and every public interest litigation and
relied on the judgment of this Court in Rural Litigation and Entitlement
Kendra vs. State of UP (1989) Supp (1) SCC 504, wherein it was held that:-
“16. ...We may not be taken to have said that for public interest
litigations, procedural laws do not apply. At the same time it has to
be remembered that every technicality in the procedural law is not
available as a defence when a matter of grave public importance is for
consideration before the Court. Even if it is said that there was a
final order, in a dispute of this type it would be difficult to
entertain the plea of res judicata…”
Thus, in the light of the above, learned counsel for the petitioners
submitted that the decision rendered in Manzoor Ali Khan (supra) should not
prevent this Court from deciding the issues raised in the present
petitions.
9) Further, it is the stand of the petitioners that a petition filed in
public interest cannot be held to be an adversarial system of adjudication
and the petitioners in their case merely brought it to the notice of the
Court as to how and in what manner the public interest is being jeopardized
by arbitrary and capricious action of the authorities and, therefore, the
principle of constructive res judicata cannot be made applicable in each
and every public interest litigation, irrespective of the nature of
litigation itself and its impact on the society and the larger public
interest, which is being served. Placing reliance on the reasoning
rendered in the aforesaid verdict the objection raised herein stands
overruled.
10) In the light of this, now let us examine the submissions of the
petitioners on merits. The decision of this Court in Manzoor Ali Khan
(supra) was based on two premises, firstly, that guideline governing the
same subject matter already exists as framed by the Directorate of
Advertising and Visual Publicity (DAVP) as well as Department of
Information in each of the States and secondly, that the matter is squarely
covered against the petitioners in view of the judgment of the Bombay High
Court in the case of Laxman Moreshwar Mahurkar (supra). It is the stand of
the petitioners that the DAVP guidelines relied upon by this Court in the
Manzoor Ali Khan (supra) and by the respondents in its counter affidavit in
the present case are irrelevant for the consideration of the issues raised
in the present writ petitions. Further, it was submitted that the decision
in Laxman Moreshwar Mahurkar (supra) is clearly distinguishable with the
facts and issues raised in the present public interest litigation. We
shall analyse both these grounds in detail in the ensuing paragraphs.
11) Primarily, objection against admitting these writ petitions was that
there exists substantive guidelines regulating the Governments’
advertisements issued by the DAVP and thus the task of this Court will be
rendered infructuous. Mr. K. Radhakrishnan, learned senior counsel for the
Union of India reiterated the stand taken by the Government in their
counter-affidavit filed in the year 2003 as well as in 2013 and brought to
our notice the New Advertisement Policy [with effect from 02.10.2007]
formulated by the Ministry of Information and Broadcasting, DAVP, which is
the nodal agency of the Government of India for advertisement by various
Ministries and organizations of Government of India including public sector
undertakings and autonomous bodies. It is seen from the Advertisement
Policy of 2007 that the primary objective of the Government is to secure
the widest possible coverage of the intended content or message through
newspapers and journals of current affairs as well as Science, Art,
Literature, Sports, Films, Cultural Affairs, etc. The Policy further
states that in releasing advertisements to newspapers/journals, DAVP does
not take into account the political affiliation or editorial policies of
newspapers/journals. However, it states that DAVP would avoid releasing
advertisements to newspapers/journals, which incite or tend to incite
communal passion, preach violence, offend the sovereignty and integrity of
India or socially accepted norms of public decency and behaviour. The
Policy dated 02.10.2007 supersedes all earlier orders and the same is the
New Advertisement Policy of the Government of India. The said Policy
contains 27 clauses. A reading of these clauses shows that the Government
advertisements are not intended to give financial assistance to the
newspapers/journals. DAVP maintains a list of newspapers/journals approved
for release of advertisements by empanelling acceptable
newspapers/journals. It further reinforces that due care is taken to
empanel newspapers/journals having readership from different sections of
the society in different parts of the country. The Policy also makes it
clear that all Central Ministries/Departments/attached and Subordinate
offices/field offices shall route their advertisements, including display
advertisements, through DAVP. It also maintains a Panel Advisory Committee
(PAC) for considering applications of newspapers/journals for being
empanelled for publishing Government advertisements. This Committee shall
be headed by the Director General, DAVP and shall include the Additional
Director General (Media & Communication)/Deputy Director General (Media &
Communication) in the Press Information Bureau (PIB), Press
Registrar/Deputy Press Registrar and Director/Deputy Secretary/Under
Secretary in the Ministry of Information and Broadcasting dealing with
Print Media. The Committee will also have one representative each from the
Association of big, medium and small newspapers. The recommendations of
the PAC as accepted by the DG, DAVP regarding empanelment of a newspaper
shall be final. It also shows that all empanelled newspapers/publications
will be asked to enter into a rate contract, which will be valid for a
period of three years. It further provides that the rate structure for
payment against advertisements released by DAVP will be worked out as per
the recommendations of the Rate Structure Committee. The rates depend on
certified circulation of a newspaper.
12) A perusal of various clauses in the Advertisement Policy of the
Government of India dated 02.10.2007 as elaborated in the aforesaid
paragraph shows that all the norms as mentioned in various clauses are to
be adhered to in overall media strategy of the Ministries and Departments
to ensure maximum coverage at optimum cost. Thus, it is vividly clear that
the DAVP guidelines, which are available in the public domain, only deal
with the eligibility and empanelment of the newspapers/journals or other
media, their rates of payment, and such like matters. Besides, it only
specifies that in releasing advertisement to newspapers/journals, the DAVP
would not take into account the political affiliation or editorial policies
of newspapers/journals. Hence, it is evident that there is no policy or
guideline to regulate the content of Government advertisements and to
exclude the possibility of any mala fide use or misuse of public funds on
advertisements in order to gain political mileage by the political
establishment.
13) As far as the second objection with regard to applicability of the
decision in Laxman Moreshwar Moharkar (supra) is concerned, we have
analyzed the same and are of the cogent view that the said decision of the
Bombay High Court is clearly distinguishable from the facts and issues
raised in the present petitions. The aforesaid case pertains to
applicability or non-applicability of a particular rule viz., Rule 189 of
the Law Officers (Conditions of Service) Rules and Rules for the Conduct of
the Legal Affairs of the Government whereas the issues raised in these writ
petitions are not pursuant to violation of any specific rule or law rather
a question of public importance has been raised as to whether the State,
which is duty bound to allocate its resources for the maximum public good,
can cavalierly spend huge sums of public funds in order to derive political
mileage. Thus, the ratio laid down in Laxman Moreshwar Moharkar (supra) is
not relevant for consideration of issues raised in these writ petitions.
14) Learned senior counsel for the respondent - UOI also made reference
to the decision in Umesh Mohan Sethi (supra) rendered on 12.12.2012 by the
Delhi High Court which pertained to similar issues as raised in these writ
petitions to substantiate their stand. In Umesh Mohan Sethi (supra), it was
held that if the Government purports to spend money for a purpose which it
characterizes as a public purpose though in point of fact it is not a
public purpose, the proper place to criticize the action of the Government
would be the legislature or the Appropriation Committee and Courts are not
the forum in which the Government’s action could be sought to be criticized
or restrained. Besides, the Delhi High Court relied on the decision of
Manzoor Ali Khan (supra) rendered by this Court and dismissed the petition
as misconceived.
15) Learned counsel for the petitioners responded to this contention by
asserting that any government activity has to satisfy the test of
reasonableness and public interest and while dealing with public funds and
property, public interest is of paramount consideration. In Kasturi Lal
Lakshmi Reddy vs. State of J&K (1980) 4 SCC 1, this Court has held as
under:-
“12. …Any action taken by the Government with a view to giving effect
to any one or more of the Directive Principles would ordinarily,
subject to any constitutional or legal inhibitions or other over-
riding considerations, qualify for being regarded as reasonable,
while an action which is inconsistent with or runs counter to a
Directive Principle would incur the reproach of being unreasonable.”
*** *** ***
“14. Where any Governmental action fails to satisfy the test of
reasonableness and public interest discussed above and is found to be
wanting in the quality of reasonableness or lacking in the element of
public interest, it would be liable to be struck down as invalid. It
must follow as a necessary corollary from this proposition that the
Government cannot act in a manner which would benefit a private party
at the cost, of the State; such an action would be both unreasonable
and contrary to public interest…..”
16) In Shrilekha Vidyarthi vs. State of UP (1991) 1 SCC 212, this Court
unequivocally rejected the argument based on the theory of absolute
discretion of the administrative authorities and immunity of their action
from judicial review and observed:
“It can no longer be doubted at this point of time that Article of the
Constitution of India applies also to matters of Governmental policy
and if the policy or any action of the government, even in contractual
matters, fails to satisfy the test of reasonableness, it would be
unconstitutional.”
Similar reasoning was rendered in Ramana Dayaram Shetty vs. The
International Airport Authority of India (1979) 3 SCR 1014 and in Col. A.S.
Sangwan vs. Union of India (1980) Supp SCC 559. Hence, it was submitted
that judicial review of Government policies is permissible if it does not
satisfy the test of reasonableness and against the public interest.
17) Although, as asserted by the respondents herein that it is not the
prima facie jurisdiction of this Court to examine what constitutes as
“public purpose” or not however, as per judicial precedents in Kasturi Lal
Lakshmi Reddy (supra) and other case laws as stated above, this Court is
duty bound to interfere whenever the Government acts in a manner, which is
unreasonable and contrary to public interest. In succinct, the Government
cannot act in a manner, which would benefit a private party at the cost of
the State; such an action would be both unreasonable and contrary to public
interest. The present writ petitions challenge the Government
advertisements of political nature at the cost of the public exchequer on
the ground that they are in violation of Articles 14 and 21 of the
Constitution. We shall examine and scrutinize the situation as portrayed by
the petitioners as to whether there is need for specific guidelines to be
issued by this Court to regulate the same.
18) The petitioners further submitted that advertisement campaigns are
undertaken ostensibly to advertise certain public works and almost all
these advertisements contain photographs of the Ministers and important
political personalities of the Government, which clearly show that these
advertisement are framed for the purpose of highlighting the achievements
of the incumbent government and aim to create an impression that those
particular political personalities were directly responsible for providing
public benefits to the people. In succinct, the use of public office and
public funds for personal, political or partisan purposes is clearly
malafide, illegal and not permissible under the Constitution. Thus, it is
the stand of the petitioners that expenditure on such advertisements is
blatant misuse of public funds by the Central Government, State
Governments, their departments and instrumentalities of the State as it
fosters wastage of scarce funds of the exchequer in promoting private
partisan interests as against public interest that is destructive of the
rule of law.
19) Conversely, the Government of India, in their counter-affidavit
claimed that 60% of the advertisements released by the Directorate of
Advertising and Visual Publicity (DAVP) on behalf of various
Ministries/Departments/Public Sector Undertakings (PSUs) of the Central
Government relate to classified or display/classified category such as
UPSC/SSC or recruitment, tender and public notices, etc. The respondents
asserted that government advertisements sometime carry messages from
national leaders, Ministers and dignitaries accompanied with their
photographs. However, it is their stand that the purpose of such
advertisements is not to give personal publicity to the leaders or to the
political parties they belong to rather the objective is to let the people
know and have authentic information about the progress of the
programmes/performance of the government they elected and form informed
opinions, which is one of the fundamental rights of the citizens in our
democracy as enshrined in the Constitution of India. The composition of
advertisements issued by DAVP during the years 2000-01, 2001-02 and 2002-03
in respect of various Ministries/Departments is given in the form of
annexure to the counter-affidavit. It is the stand of the Government that
the objective of displaying the advertisements issued by DAVP on behalf of
the Ministries/Departments of the Government of India is to create
awareness among the people about various policies, programmes and
achievements of the Government and advertising is an integral part of
dissemination of information, which is essential in a democracy.
20) The contentions raised by the respondents are based on clear
principle that is bound to be accepted on the face of it. The stand that
Government advertising is a mode for the Government to disseminate to the
members of the public, of information about a government program, policy or
initiative, or about any public health or safety or other matter(s), that
is funded by or on behalf of a Government agency, is an outright fact and
is a must in our democratic setup. This Court, in its Constitutional
wisdom, understands that it is only through such advertisements that the
Government communicates with its citizens which plays an important role in
efficiently and effectively achieving the goals of public policy.
21) At the same time, the stand of the petitioners in these writ
petitions is also not entirely misconceived. Since the 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, programs, services and initiatives, however, when
these requisites are not fulfilled in a Government advertisement than the
whole purpose would be frustrated. The petitioners through annexures have
brought to the notice of this Court numerous Government advertisements
released by the Central Government, State Governments, their departments
and instrumentalities of the State which fail to disseminate any
information to the public of their rights and entitlements in the
Government policies rather only glorifies the accomplishments of a
particular Government. The petitioners herein have disputed only such
advertisements, which they plead to be wastage of public exchequer for
political mileage. While the boundary lines can blur, we need to
distinguish between the advertisements that are part of Government
messaging and daily business and advertisements that are politically
motivated. It is yet further pleaded that even the Election Commission of
India though had expressed concern but could not do anything owing to lack
of jurisdiction in the matter.
22) Although this issue of concern may be new to India but not for other
countries. Governments around the world spend huge amount of money yearly
for advertisements in their local media and most of the countries have
faced similar fate of situation as portrayed in these petitions. The
solution to this crisis was arrived at by framing the Government
advertising guidelines, which set out the policies and processes that apply
to Government advertisement. Few countries which adopted Government
advertising policies are as under:-
Australia
Australia adopted new policy to regulate Government advertisement in
response to nearly a decade of abuse, during which public advertising was
corruptly used to promote a partisan agenda. The focus of policy
recommendations is to depoliticize public advertising, prevent conflict of
interest, and devolve power in such a way that no person or group can
easily exploit public advertising funds for individual or political gains.
Canada
Canada also has strict conflict of interest guidelines, which promote
transparency, accountability and separation of authority to discourage
abuse of public advertising funds for individual, financial or political
gains.
Similar policies exist in almost all developed countries to check the abuse
of Government advertisements for private benefits.
23) There are five principles laid down in Guidelines On Information and
Advertising Campaigns by Australian Government Departments and Agencies,
which will be applicable to all Government advertising campaigns.
Principle 1: Campaigns should be relevant to government responsibilities.
Principle 2: Campaign materials should be presented in an objective, fair,
and accessible manner and be designed to meet the objectives
of the campaign.
Principle 3: Campaign materials should be objective and not directed at
promoting party political interests.
Principle 4: Campaigns should be justified and undertaken in an efficient,
effective and relevant manner.
Principle 5: Campaigns must comply with legal requirements and procurement
policies and procedures.
24) In these circumstances, conceding that the existing DAVP
policy/guidelines do not govern the issues raised in these writ petitions
and do not lay down any criteria for the advertisements to qualify for
“public purpose” as opposed to partisan ends and political mileage, there
is a need for substantive guidelines to be issued by this Court until the
legislature enacts a law in this regard. The petitioners through their
written submissions have proposed guidelines in this regard, however, on
going through the same, we recognized that the petitioners herein have
basically adopted the proposed guidelines verbatim from other jurisdiction
viz., Australia. Accordingly, we do not think that it will be appropriate
for this Court to adopt the guidelines of other country without application
of mind and appreciation of situation in our country.
25) Keeping in mind that the time available to this Court is limited and
the subject matter for which guidelines are to be framed is sensational and
significant, we deem it proper to constitute a Committee consisting of
three members to undertake the task of suggesting guidelines to this Court
after an intricate study of all the best practices in public advertisements
in different jurisdictions and to submit the same before this Court
preferably within a period of three months. The Committee will consist of
the following members:
1) Prof. (Dr.) N.R. Madhava Menon,
former Director, National Judicial Academy, Bhopal
2) Mr. T.K. Viswanathan,
former Secretary General, Lok Sabha
3) Mr. Ranjit Kumar, Senior Advocate
In order to coordinate and render assistance to the Committee, we appoint
the Secretary, Ministry of Information and Broadcasting as Member
Secretary.
26) The matter be posted for further direction before this Court on the
expiry of three months from today along with the suggestions as may be
submitted by the Committee pursuant to this judgment.
.…….…………………………CJI.
(P. SATHASIVAM)
………….…………………………J.
(RANJAN GOGOI)
………….…………………………J.
(N.V. RAMANA)
NEW DELHI;
APRIL 23, 2014.
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