download-judgmentIn a historic judgment, deciding a 12-year-old Public Interest Litigation matter, Supreme Court bench comprising of Justices Ranjan Gogoi and Pinaki Chandra Ghosh has prohibited the use of photographs of politicians or leaders other than the President, Prime Minister or the Chief Justice of India, in print ads placed by the government. Bench has also directed the government to appoint a three-member panel of ombudsman to ensure the compliance of its directions.

Public Interest Litigation Petitions

  • Writ Petition (C) No. 13 of 2003 – Common Cause v. Union of India
  • Writ Petition (C) No. 197 of 2004 – Centre for Public Interest Litigation v. Union of India & Ors.
  • Writ Petition (C) No. 302 of 2012 – Foundation for restoration of Natural  Values v. UOI & Ors.
Date of Judgment 13 May 2015
  • Justice Ranjan Gogoi
  • Justice Pinaki Chandra Ghosh

Supreme Court of India

The first petition in this matter was filed by Common Cause in the year 2003. The petitions filed under Article 32 of the Constitution of India sought an appropriate writ from SC to restrain the Union of India and all State Governments from using public funds on Government advertisements which are primarily intended to project individual functionaries of the Government or a political party. The petitioners also pleaded before the Court to lay down appropriate guidelines to regulate Government action in the matter so as to prevent misuse/wastage of public funds in connection with such advertisements.

Contentions of the PIL petitioners

It was the contended by the petitioners before the Court that undue political advantage and mileage was being sought in the garb of communicating with the people by personifying individuals and crediting such individuals or political leaders as being responsible for various government achievements and progressive plans. According to the petitioners such practice becomes rampant on the eve of the elections. They claimed that such advertisements not only result in gross wastage of public funds but also 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.

Government’s stand

The Union of India opposed the petitions on the ground that the issues sought to be raised, pertain to governmental policies and executive decisions and it would not be appropriate for SC to lay down binding guidelines under Article 142 of the Constitution. They relied on the decisions of SC in Manzoor Ali Khan & Anr. Vs. Union of India & Ors [(2014) 7 SCC 321] and Delhi High Court in Umesh Mohan Sethi Vs. Union of India & Anr. [2013 1 AD (Delhi) 537].

N R Madhava Menon (Image courtesy: GGU)

Madhava Menon Committee appointed

On 23 April 2014, while hearing these Petitions, the bench headed by then CJI P Sathasivam had constituted a Committee consisting of three members to undertake the task of suggesting guidelines to SC “after an intricate study of all the best practices in public advertisements in different jurisdictions”.

The committee comprised of:

  1. Prof. (Dr.) NR Madhava Menon, former Director, National Judicial Academy, Bhopal [Chairperson]
  2. TK Viswanathan, former Secretary General, Lok Sabha
  3. Ranjit Kumar, Senior Advocate

A report was submitted by the Committee suggesting a set of guidelines for approval by SC. Petitioner contended that these guidelines should be approved by SC and directions be issued under Article 142 of the Constitution for their enforcement until an appropriate legislation in this regard is brought into effect by the Parliament.

How Article 142 came to be invoked

Bench observed that in a situation where the field is open and uncovered by any government policy, to guide and control everyday governmental action, surely, in the exercise of jurisdiction under Article 142 of the Constitution, parameters can be laid down by Supreme Court consistent with the objects enumerated by any of the provisions of Part IV of the Constitution. It observed that such an exercise would be naturally time bound till the Legislature or the Executive, as the case may be, steps in to fulfill its constitutional role and authority by framing an appropriate policy.

Holding that it was a fit case for using its power under Article 142 of the Constitution, the Bench observed:

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.

Reference to policy in jurisdictions outside India

In its judgment, SC has made references to practices in relation to government advertisements prevailing in Canada, United Kingdom, New Zealand and Australia. It observed that 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. Court observed that the good practices of other jurisdictions had been included by the Committee in its report.

Photographs of only three personalities allowed

Bench observed that publication of the photograph of an individual has the tendency of associating that individual with the achievement or show them as the architect of the benefits. It noted:

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.

Holding that the “legitimate and permissible object of an advertisement” can be achieved without the photograph, in a partial departure from the committee’s view which recommended the permissibility of publication of the photographs of the President and Prime Minister, and Governor or Chief Minister of the State along with the advertisements; bench held that an exception can be made only for the President, Prime Minister and Chief Justice of India who may themselves decide the question.

Photographs of departed leaders allowed

Court held:

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.

Directions ‘not comprehensive’

Observing that the Court did not wish to lay down infallible and all-comprehensive directions to cover the issue, it ordered:

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 conjoint responsibility of the three organs of the State i.e. legislative, executive and the judiciary, as earlier discussed.

Appointment of Ombudsman

Directing the government to appoint a three-member panel of ombudsman to ensure the compliance of its directions, Bench observed:

…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 respective fields.Recommendation adopted.

Recommendations adopted

Bench closed the matter by “approving and adopting” the recommendations of the Committee except what it had specifically indicated otherwise in the judgment in relation to photographs, ombudsman, audit and advertisements on the eve of elections.