Govt ads: Regulatory norms needed

It has been more than a month since the Supreme Court delivered the judgment in the Common Cause case on government advertisements.  In the judgment of May 13, while showing a generous indulgence to publication of photos of the Prime Minister, the President and the Chief Justice of India in the ads , the court clearly prohibited publication of photographs of the Chief Ministers and Governors.

This indulgence and interdiction in the judgment were not supported by any reasoning. Neither the petitioners, nor the Central government, nor the intervener sought any privilege for the Centre as regarding photographs. Nevertheless, a verdict with an apparent anti-federal content followed.

No one would dispute the instructive value of government ads or their utility. The publication of photos in itself also was not the real issue involved in the case. The photos should be understood in continuum, and not in isolation. The moot point was whether the leaders in power could be allowed to trap the state exchequer for political mileage. The luxury of personality cult at the cost of the tax payers was highlighted in Common Cause.   

The Court could have underlined the role of the Comptroller and Auditor General (CAG), a functionary as envisaged under Articles 148 to 151 of the Constitution of India. The CAG ought to have been reminded about his role in the matter. This aspect was placed before the court by way of affidavits.

A committee headed by N R Madhava Menon, which was appointed by the court, put forward certain principles of content regulation in government ads. As rightly indicated in the report and accepted by the court, the campaigns should have a correlation with government’s responsibilities and the presentation should be fair and objective. The report said that the ads should not be for promoting political interests of the party in power. The need for cost effective methods and adherence to legal requirements also were stressed upon.

The court could not however, evolve an independent regulatory mechanism. The committee suggested appointment of an ombudsman and the prescription of the court was “a three member body consisting of person with unimpeachable neutrality and impartiality”. 

There is a need to ensure that the appointment is not vitiated by political considerations as demonstrated by the Centre in recent times.

In the case, there were possibilities for direct confrontation between the court and the Centre after the NDA government came to power. It was after observing that “the photographs have the potential of developing personality cult… which is a direct antithesis of democratic functioning” that the Court, quite ironically permitted the photos of the Prime Minister, President and the Chief Justice of India in the realm of official propaganda. This was done with a rider that these dignitaries “may themselves decide the question”. This is again a strange judicial gesture.

Centre-State relations

The Supreme Court had categorically held in the S R Bommai (1994) case that federalism, like secularism, is a basic feature of the constitution. Federalism is not just a matter of Centre-State relation. It is more about participation, equity and equality.

It is an ideology which opposes discrimination between the Centre and the state in political and administrative affairs. Viewed so, the criticism that the verdict is clearly anti-federal, as pointed out by some political leaders in south India, is quite tenable.  Their stiff dissent has a political foundation.

The committee had underlined the need to regulate ads in the light of the principles enumerated especially during the period prior to elections. The court, however, bluntly rejected this recommendation, which again is least convincing.

Political leaders in power may be prone to populist measures and often, may play to the gallery. There may be even instances of narcissism unlimited. The desire for hogging the limelight cannot, however, be the foundational logic of the government ads at the expense of the public. A government message could be a fine awareness builder. It is sometimes a useful device for a dialogue between the state and the citizens.

It may often reflect and reinforce a social construct. Therefore, it should be evaluated by its content and form.  It should have educative and cognitive traits. It cannot be a bureaucratic exercise in praise of people in power, who are often fawned upon by flunkeys.  Leaders in action, who are fond of rhetoric, should also know the value of splendid isolation.  They should, like Nehru and Gandhi, be able to wall themselves off from the crowds, at least occasionally.

The judgment failed to recognise its own thematic premise. No wonder, it is incomplete and less reasonable and sometimes unreasonable.  There is a need to evolve better practice and better regulatory mechanism related to government ads in the country.

(The writer is advocate in the Supreme Court and Kerala High Court)