ABSTRACT

Today advertisements have huge impact on masses. Advertisements have emerged as a

powerful and effective tool of communication. This use is exploited by various state actors for
their own benefit with organisations shedding considerable amount of money for few
seconds. The apex court was approached 12 years ago to restrain the governments from
using public funds on such advertisements which are intended to glorify the party in the eyes
of people. The infamous case talked about is Common Cause vs. Union of India which had
significant impact and thus deserves close analysis.

CASE COMMENTS

COMMON CAUSE versus UNION OF INDIA

Citation: 2015(6) SCALE302

The present petition dealt with the issue of using public funds on Government advertisements
which are primarily concerned with gaining political mileage and to regulate the same by
laying down proper guidelines.

Petitioners contended that such government advertisements not only waste public funds but
also violate Article 14 and 21 of the Constitution of India. The Union of India resisted
intervention of Courts under Article 142 of the Constitution, on the ground that the raised
issues pertain to governmental policies and executive decisions.

The Court constituted a Committee for this purpose which suggested a set of guidelines. The
applicability of such guidelines was to all Government advertisements other than classifieds
and in all mediums of communication, thereby including internet advertising. The objective
of the guidelines emphasized the Government’s responsibility to disseminate information
necessary for the public to know about the policies and programmes of Government. It
principally spelt out five principles to regulate the contents of advertisements:
1) advertising campaigns to be related to government responsibilities, 2) materials be
presented in an objective, fair and accessible manner and designed to meet objectives of the
campaign, 3) not directed at promoting political interests of a Political party, 4) campaigns be
justified and undertaken in an efficient and cost- effective manner and 5) advertisements to
comply with legal requirements and financial regulations and procedures. Further under each
broad head specific regulatory parameters were indicated.

The Court justified its intervention on the principles of reasonableness and fairness under
Article 14 and provisions of Part IV of the Constitution. The court dealt with a myriad of
cases where government could use advertisement as legitimate means of messaging. Further
court added that government should not be favourable towards a particular media house and
award advertisements on equal basis depending upon the circulation.

Most recommendations of the Committee were comprehensive and based on an analytical

approach of the best practices prevailing in other jurisdictions which could be relevant in
India as well. In this regard Court made reference to practices prevailing in Canada, United
Kingdom, New Zealand and Australia.

The Union Government and the State of Bihar filed their responses towards draft guidelines.
State mostly emphasised against the recommendation to confine the publication of
photographs of the President and the Prime Minister of the country and the Governor and the
Chief Minister of the State. The Union was more accurate and suggested few pertinent
changes and deletions in the guidelines. Mostly recommendations were suggestions which
would not make any substantial difference to the impact and effect of the guidelines. But it
strongly disagreed on: 1) the restricted publication of photographs of the Government
functionaries and political leaders along with the advertisement etc; 2) appointment of an
Ombudsman; 3) the recommendation with regard to performance audit by each Ministry; 4)
embargo on advertisements on the eve of the elections.

Court dealt with these issues in detail and contended that the permissible objective of an
advertisement could be attained without publication of the photograph of any particular
functionary of a political party or a state. Exception to this is when the President, Prime
Minister and Chief Justice of the country may themselves delve into the matter.

The Courts deemed the appointment of Ombudsman as essential for solving any future
contingencies and for its proper implementation. The Union should constitute a three member
body consisting of persons with unimpeachable neutrality and impartiality who have excelled
in their fields.

Court felt that special audit could be dropped as adequate measures were taken to ensure
accountability and proper utilization of public money.

As far as the imposing of special curb on government advertisements on the eve of the
elections was concerned, it could be done away with if Government adheres to the parameters
mentioned above.

The Court firmly believed that any gaps in the present provisions would be filled up by the
executive as realisation of the goals in Part IV of the Constitution is the conjoint
responsibility of the three organs of the State i.e. legislative, executive and the judiciary.

The judgement had far reaching consequences. Through this judgment, the apex court tried to
remedy the ills of advertising, like the wastage of public funds and propaganda by the ruling
party. Further, it also tried to curb the ruling parties from using Government resources and
machinery to propagate and promote itself. The court also took cognizance of advertising as
an important mode to disseminate information regarding government achievements, policies,
programs etc. It is an efficient communication tool between the government and public.
There is no doubt that sometimes the advertisements glorify a leader and are too artificial but
the whole point of advertising is to catch public eye by relating to a person that public feel
connected with.

Though the intention was to rectify these drawbacks but there are a couple of loopholes in the
verdict. The court completely disregarded the quasi-federal structure of India. The test for
advertisement set by the court is to gauge whether the advertisement is for a ‘public purpose’.
The court itself agreed on the point that advertisements are an effective tool to communicate
with people and thus serving the ‘public purpose’. So, merely using the name of some of the
party leaders should not make the advertisement illegal.

The judgement attracted much criticism from several political leaders as well. They
contended that both Prime Minister and a Chief Minister are at par in a democratic country
like India where both are elected by the public. They further pointed out that considering the
number of illiterate people; images serve as the best tool to attract the public attention.
The constitution is the supreme law of the land. The President and the Chief Justice are the
only Constitutional authorities among all the personalities considered in the case. Thus, it is
only these which are deemed to be impartial and devoid from political influences. Hence
allowing publication of pictures of the President and Chief Justice of India is understandable.
But why should the Prime Minister be exempted, when he is in fact the leader of the majority
party of Lok Sabha? Allowing the publication of Prime Minister pictures doesn’t change the
earlier position as it will still lead to creation of a political cult personality around an
individual. The information about Government policies and projects can be spread without
the use of the pictures of the Prime Minister.

Yet another fall is in the scope of this judgement. Whether posters and banners can be
included in the ambit of advertisements? Use of large cut outs of political leaders is a
common tradition in India where rallies are hoarded with large cut outs of popular party
leader during elections. But technically this doesn’t fall in the category of advertisements. In
the essence these images on banners and posters do hamper the very spirit of this judgement.
But the court chose to remain silent on this point. A more glaring example of such violation
took place in capital itself when the Delhi State Government broadcasted a video
advertisement illustrating the various achievements and programs undertaken by the party
under the guidance of party leader and Delhi’s infamous CM without using his picture.
Though, the advertisements didn’t violate the judgement per se, but it did affect the very
purpose of the judgement.

With all its merits and demerits this judgement has come into force. Now, it is for the future
to decide how far this judgment will be able to serve its purpose.