By Anaida Kuthiala, Army Institute of Law, Mohali.
The grundnorm of India provides for the constitution of a public fund known as the Consolidated Fund of India1 meant for setting off the expenditure incurred by the government. In the largest democracy of the world, the law requires that there is no arbitrary use, misuse or ‘disguised use’ of the public funds. The state cannot abandon this principle and use the public funds for furthering its own ulterior motives by using such funds for publicising the members of its party, its achievements and glorifying its accomplishments. Although prima facie, these full page advertisements published through the print media and other repetitive advertisements publicised through other media is alleged to inform and apprise the public, they rather aim at glorifying the achievements of the political parties so as to canvass a large number of votes. In other words, the political party is given the freedom to publicise its agendas free of cost for themselves, but at the cost of the public funds.
This issue was put to adjudication in the landmark and recent judgement delivered in the case of Common Cause vs. Union of India2, wherein a class action was brought by the organisations of Common Cause and the Centre for Public Interest Litigation, to seek remedy against this gross misuse of funds at the cost of the public exchequer. The plaintiffs sought a writ in the nature of mandamus in order to put a restrain on the Central Govt. and the State Govt’s and its instrumentalities, in utilisation of public funds for advertising in a manner so as to augment the image of the party and for laying down certain guidelines by the Govt to check such misuse of funds given by the taxpayers3.
Public funded Govt. Advertisements are in the form of a de facto violation of the Fundamental Rights of the citizens, guaranteed by the Constitution under Article 14 and 21 and is a malafide use of the public funds. Such advertisements are alleged to be in the disguise of public interest, meant for spreading awareness and disseminating information in a democratic society. While dealing with the public funds the Govt has to substantiate the action and satisfy the test of reasonableness and public interest, which requires that the Govt. does not act in a manner beneficial to one party, at the expense of the state4, in which case the court is duty bound to take action. It is noteworthy to consider that the Govt. has an obligation under Section 4 of the RTI Act, to pro-actively disclose its policy on such advertisements which bear the photographs of political leaders.
When sought for adjudication, the matter was asserted to be res judicata and no longer res integra, as the issue were already put up before the Bombay and Delhi High Courts5, calling for the dismissal of the writ petition. Albeit the matter was said to be sub judice, Apex Court admitted it, the principal of res judicata was proved as not necessarily applicable in every public interest litigation6. The main aim of the action brought by the petitioners was merely to apprise the court of the gross misuse and the arbitrary and capricious actions of the Govt. authorities.7 as contended by the petitioners, such a blatant misuse of public fund by the govt in a routine manner is not only breach of public trust and violation of the rule of law but it is also damaging the democratic setup of the country.8
Public awareness and wakefulness in the realm of political affairs is must for a democratic Govt. to thrive. The importance of the advertisements by the govt. inform the people of the various achievements and societal developments, and the display of pictures of political personalities is to authenticate the said information as true and is not in the nature of personal publicity in any manner or to misguide the public. Thus, keeping in consideration the importance of such advertisements, the Supreme Court gave an order stating that such advertisements containing photographs of political leaders and ministers shall be banned, except where the photographs of the President, Prime Minister and Chief Justice of the country, are displayed. The boundary line to differentiate the govt messages from the politically motivated one, is quite blur. In the order delivered by the court, it sought for Constitution of a three member committee to deal with this issue. With the Ministry of I & B as the member secretary, it was set up to suggest guidelines and submit the preferably within three months. The objective of these guidelines is to lay emphasis on the responsibility of the Govt. to circulate information necessary for the public to know about the policies and programmes of the Govt. Prima facie, it spells out five main principles9 to regulate the content of the advertisements; Firstly, that the advertisement campaigns should be linked with the Govt. responsibilities Secondly, that the material publicised should conform with the objectives to achieved by the party and should be fair Thirdly, it should not prima facie be directed at promoting the political interests of the party, Fourthly, efficiency and cost-effectiveness should be maintained to advertise justified campaigns, and Lastly, the advertisements must comply with the legal requirements and financial regulations and procedures. The effect of such order of the court is, that the state schemes by the Chief Ministers of various states is to be strictly informative and not suggestive of political mileage. Such public interest litigations aiming at welfare of the masses, are an attempt to arrest the natural flow of all undesirable activities which are against the very nature of a democracy, ours being the biggest in the world.
1 Article 266(1) of the Constitution of India.
2 (2014) 6 SCC 552
3 These guidelines are to be known as the Government Advertisement (Content Regulation) Guidelines 2014.
4 Kasturi Lal Lakshmi Reddy Vs. State Of J&K (1980) 4 SCC 1
5 Manzoor Ali Khan And Anr. Vs. U.O.I. and ors. Writ petition( Civil) No. 83 OF 2005; Umesh Mohan Sethi Vs. U.O.I. And Anr. Writ Petition (Civil) No. 2926 Of 2012 ; Laxman Moreshawar Mahurkar Vs. Balkrishna Jagnath Kinikar And Ors. AIR 1961 Bom. 167
6 Rural Litigation And Entitlement Kendra Vs. State Of U.P. (1989) Supp (1) SCC 504
7 Shrilekha Vidyarthi vs. State of U.P. (1991) 1 SCC 212 – There is no absolute discretion of administrative authorities and immunity of actions from judicial review.
8 See- http://www.ndtv.com/india-news/explain-crores-of-ads-on-political-leaders-says-supreme-court-519166 (Accessed on 7 June,2015)
9 See- http://www.scdecision.in/volume/42/686 (Accessed on 7 June,2015)