TMI Blog2015 (5) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter 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 recommendations of the Committee is approved and ado ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutive decisions in respect of which it may not be appropriate for this Court to lay down binding guidelines under Article 142. The decision of this Court in Manzoor Ali Khan Anr. Vs. Union of India Ors. (2014) 7 SCC 321 and a pronouncement of the Delhi High Court in Umesh Mohan Sethi Vs. Union of India Anr. WP (C) No.2926 of 2012 decided on 12.12.2012 have been relied upon by the Union in support of its above stated stand. 4. The issues arising in the writ petitions were considered by this Court in an earlier round of exhaustive hearings. By order dated 23.04.2014, 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 aforesaid 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifications. (b) DAVP Guidelines means the existing guidelines of the Directorate of Advertising and Visual Publicity of the Ministry of Information and Broadcasting dealing with the eligibility and empanelment procedures and rates of payment and such other matters; (c) Government means Central Government, State Governments/Union Territory Administrations and also includes local bodies, public sector undertakings and other autonomous bodies/organisations established under a Statute. (d) Government advertising means any message, conveyed and paid for by the government for placement in media such as newspapers, television, radio, internet, cinema and such other, media but does not include classified advertisements; and includes both copy (written text/audio) and creatives (visuals/video/multi media) put out in print, electronic, outdoor or digital media. OBJECTS: The objects of these Guidelines are:- (a) to prevent arbitrary use of public funds for advertising by public authorities to project particular personalities, parties or governments without any attendant public interest. (b) neither to belittle the need nor to deny the authority of the Union and Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the recipients of the information to distinguish between facts and analysis and where information is presented as a fact, it should be accurate and verifiable; (iv) Pre-existing policies, products, services and initiatives should not be presented as new unless there has been a substantial change or modification of such policies, products or services; (v) Content of advertisement should provide information in a manner that accommodates special needs of disadvantaged individuals or groups identified as being within the target audience; (vi) Multiple formats may be used to ensure equal access; (vii) Every effort shall be made to pre-test the material in case of large scale campaign with target audiences. (3) Advertisement materials should be objective and not directed at promoting political interests of ruling party: (i) Display material must be presented in objective language and be free of political argument or partisan standpoint: (ii) Government advertising shall maintain political neutrality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 with legal requirements and financial regulations and procedures: Governments shall ensure that all Advertisements comply with:- (i) relevant laws regarding privacy, intellectual property rights, election laws and consumer protection laws apart from laws in respect of broadcasting and media; and (ii) copyright laws and ownership rights associated with works subject to copyright are fully respected. COMPLIANCE AND ENFORCEMENT: (1) The Government shall appoint an Ombudsman who shall be an eminent expert independent of the Government to receive complaints of violations of Guidelines and to recommend action in accordance with the Guidelines. (2) Heads of government departments and agencies shall be responsible for ensuring compliance with these Guidelines and shall follow a procedure of certification of compliance before advertisements are released to the media. (3) As part of the performance audit of the Ministry/Department/Agency (a) there shall be separate audit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 of jurisdiction under Article 142 of the Constitution, parameters can be laid down by this Court consistent with the objects enumerated by any of the provisions of Part IV. Such an exercise would be naturally time bound i.e. 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. 8. Article 38 and 39 of the Constitution enjoin upon the State a duty to consistently endeavour to achieve social and economic justice to the teeming millions of the country who even today live behind an artificially drawn poverty line. What can be the surer way in the march forward than by ensuring 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. 9. It is neither possible nor feasible or even necessary to try and encompass the myriad sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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: 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. 10. A connected facet of the matter which cannot be ignored is the power of the Government to give/award ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 or actions of other parties in opposition, (c) include any party symbol or logo, (d) aim to influence public support for a political party or a candidate for election or (e) refer or link to the websites of political parties or politicians. It is also stated in the Guidelines that photographs of leaders should be avoided and only the photographs of the President/ Prime Minister or Governor/ Chief Minister shall be used for effective government messaging. The fourth head deals with cost effectiveness of an advertisement campaign and measures to cut down avoidable expenses. A somewhat restricted range of advertising activity on the eve of the elections is also recommended. Appointment of an Ombudsman to hear complaints of violation of the norms and to suggest amendments thereto from time to time beside special performance audit by the concerned Ministries is also recommended. 13. The Union Government and the State of Bihar h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 that serve public interest may be issued at any point of time. (3) Ombudsman The suggestion of the Committee with regard to appointment of the Ombudsman is in the following terms: The Government shall appoint an Ombudsman who shall be an eminent expert independent of the Government to eceive complaints of violations of Guidelines and to recommend action in accordance with the Guidelines. The Union objects to the same and seeks deletion of the said recommendation as also the ecommendation with regard to separate performance audit of each Ministry and publication of the result of such audit. According to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 available to them; (ii) to inform the public of their rights and responsibilities under the law and (iii) to encourage or discourage specific social behaviour in public interest. Such advertisements are not to include the name, voice or image of any functionary of the State and the primary objective of an advertisement ought not to be to foster a positive impression of the ruling government or a negative impression of any person, group or party critical of the government. 20. In some of the foreign jurisdictions there is a mechanism for review of advertisements on fixed p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selves 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 respective fields. We could have but we refrain from naming the specific persons and leave the said exercise to be performed by the Union Government. 25. Insofar as performance/special audit is concerned, we do not feel the necessity of any such special audit inasmuch as the machinery available is adequate to ensure due performance as well as accountability and proper utilization of public money. 26. If Government advertisements adhere to the objects and parameters mentioned above we do not feel the necessity of imposing a special curb on government advertisem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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