Thursday, 28 May 2015

The Supreme Court of India - Restraining Use of Public Funds on Government Advertisements

Common Cause vs Union of India

In response to the writ petition filed by Common Cause and Centre for Public Interest Litigation (herein referred to as Plaintiffs) requesting the Hon’ble Court to regulate Government’s action in the matter so as to prevent misuse/wastage of public funds in connection with such advertisements, the Hon’ble Supreme Court passed an order dated April 23, 2014 establishing a committee comprising of (1) Prof. (Dr.) N.R. Madhava Menon, former Director, National Judicial Academy, Bhopal (2) Mr. T.K. Viswanathan, former Secretary General, Lok Sabha and (3) Mr. Ranjit Kumar, Senior Advocate to go into the matter and submit a report to the Court. On May 13, 2015, the Hon’ble Supreme Court considered these recommendations and accepted them, forming the Guidelines for Content Regulation on Government Advertising.

Brief Facts of the case:
  1. Common Cause and Centre for Public Interest Litigation are two registered bodies which approached the Hon’ble Supreme Court of India by filing a writ petition under Article 32 of the Constitution, seeking an appropriate writ 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;
  2. According to the petitioners such practice becomes rampant on the eve of the elections. Advertisements not only result in gross wastage of public funds but constitute misuse of governmental powers besides derogating the fundamental rights of a large section of the citizens as guaranteed by Articles 14 and 21 of the Constitution of India.
  3. The Writ Petitioners conceded to the importance of Government advertisements which convey necessary information to the citizens with regard to various welfare and progressive measures as also their rights and entitlements, however, had contended that in the garb of communicating with the people, in many instances, undue political advantage and mileage is sought to be achieved by personifying individuals and crediting such individuals or political leaders (who are either from a political party or government functionaries) as being responsible for various government achievements and progressive plans.
  4. After a round of exhaustive hearings, on April 23, 2014, the Court acknowledged the fact that the dividing line between permissible advertisements that are a part of government messaging and advertisements that are “politically motivated” at times gets blurred, and therefore felt the need to establish a Committee comprising of experts to look into this matter and submit a report to the Court.
  5. The Guidelines as proposed by the Committee talk about 5 essential principles to regulate the content of advertising, namely:
    1. advertising campaigns are to be related to government responsibilities,
    2. materials should 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 Party,
    4. campaigns must be justified and undertaken in an efficient and cost-effective manner and
    5. advertisements must comply with legal requirements and financial regulations and procedures.
  6. The Writ Petitions were resisted by the Union of India on the grounds that the issues sought to be raised pertain to governmental policies and executive decisions in respect of which it may not be appropriate for this Court to lay down binding guidelines under Article 142.
  7. The Hon’ble Supreme Court closed the matter by approving and adopting the recommendations of the Committee except what has been specifically indicated above with regard to:

    1. a. Publication of photographs of the Government functionaries and political leaders alongwith the advertisement(s).
    2. b. appointment of an Ombudsman
    3. c. the recommendation with regard to performance audit by each Ministry.
    4. d. embargo on advertisements on the eve of the elections.
Guidelines on Content Regulation of Government Advertising

Following are excerpts from the contents of the guidelines suggested by the Court appointed committee which affect Intellectual Property laws:

2.(2) Application
These Guidelines shall apply to the content of all Government Advertising till a suitable legislation is enacted by the Government to prevent the misuse of public funds on advertisements to gain political mileage as distinct from legitimate Government messaging.

6.(3)     Advertisement materials should be objective and not directed at promoting political interests of ruling party:
(ii) Government advertising shall maintain political neutrality and avoid glorification of political personalities and projecting a positive impression of the party in power or a negative impression of parties critical of the government.
(iii) Advertisement materials must not –
(a) Mention the party in government by name;
(b) directly attack the views or actions of others in opposition;
(c) include party political symbol or logo or flag;
(d) aim to influence public support for a political party, candidate for election; or
(e) refer to link to the websites of political parties or politicians.
6.(4)(d) Though advertising by governments should remain regulated all the time, it is particularly important to scrupulously follow these principles before and during the elections.
6.(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.

The Court Order can be accessed here.

One of the Guidelines that the Hon’ble Supreme Court has issued is in regard to Government personalities in advertisements. The Guideline specifies that only photographs of the President, the Prime Minister and the Chief Justice of India can be used in Government Advertisements and that no other person’s face/image may be used to advertise any government activity. Following in the steps of countries like Canada, Australia and the United Kingdom, these measures have been introduced so as to ensure personality rights of any political party / figure remain intact while at the same time protecting the interests and money paid by the taxpayers being added to the public fund.

This particular guideline might adversely affect all the political figureheads who have been banking on their goodwill and fame to further their campaign and gain political mileage by exploiting the public funds. These guidelines do not, however, prohibit any famous political party / figure to further their campaign and gain political mileage using their own funds. This specific guideline was essential as it prohibits the misuse / exploitation of public funds and hard earned taxpayer money by political parties to rise in popularity, especially during times of election when campaigning is most widespread and extravagant.


The establishment of these guidelines is therefore, perfectly balanced as it maintains the interest of the political figureheads / parties and the interests of the common public. The Court observed that the legitimate and permissible object of an advertisement, can always be achieved without publication of the photograph of any particular functionary either in the State of a political party. Being a mixture on public and private rights, the personality rights give a person the sole right to exploit their personality for commercial purposes, and since such famous figures / parties may do so with their own fund, their personality rights, which in themselves are an extension of Intellectual Property rights, are safeguarded while keeping the public interest at highest priority.

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