Supreme Court of India
COMMON CAUSEversusUNION OF INDIA
- Citation
- 2015 INSC 404
- Decided
- 13 May 2015
- Disposal
- Disposed off
- Bench
- RANJAN GOGOI
Holding
The Court held that, in the absence of a legislative policy, it may lay down parameters for government advertising under Article 142 and accepted the Committee's guidelines except for the four specific recommendations.
Summary
Common Cause and Centre for Public Interest Litigation filed a writ petition under Article 32 seeking to restrain the Union and State governments from using public funds for advertisements that project individual functionaries or political parties, and asked the Supreme Court to lay down guidelines. The Court, invoking its jurisdiction under Article 142, examined whether it could prescribe content‑regulation parameters in the absence of a legislative policy. After a Committee submitted draft guidelines, the Court accepted the recommendations as a whole but excluded specific provisions on the publication of photographs of officials, the appointment of an Ombudsman, performance audits, and an embargo on election‑time advertisements. The Court held that such guidelines are permissible to ensure fairness, reasonableness and democratic functioning, while leaving gaps to be filled by the executive. Consequently, the petition was disposed with the Court’s directions adopting the guidelines, subject to the noted exceptions.
Issues considered
- Whether the Supreme Court can issue binding guidelines for government advertising under Article 142 of the Constitution.
- Whether government advertisements that project individual functionaries or political parties constitute misuse of public funds violating Articles 14 and 21.
- Whether the Committee's draft guidelines should be accepted and made operative.
- Whether specific recommendations (photographs of officials, Ombudsman appointment, performance audit, election‑time embargo) should be incorporated.
- Whether judicial intervention is permissible in the field of policy where no legislative framework exists.
Legislation cited
- Constitution of Indias. Article 12, s. Article 14, s. Article 142, s. Article 21, s. Article 38, s. Article 39
Subjects
government advertisingpublic fundspolitical advertisingArticle 142Supreme Court guidelinespublic interest litigationmisuse of public moneypolitical neutralityOmbudsmanelection advertisingcontent regulation
Judgment
[2015] 5 S.C.R. 29
COMMON CAUSE A
v.
UNION OF INDIA
(Writ Petition (Civil) No.13 of 2003) B
MAY 13, 2015
[RANJAN GOGOi AND PINAKI CHANDRA GHOSE, JJ.]
Constitution of India, 1950 -Art. 142 - Exercise of
c
jurisdiction under - Writ Petition - To restrain the Union of
India and all State Governments from using public funds on
Government advertisements, to project individual
functionaries of the Government or a political party- In terms o
of the order of this Court, guidelines suggested by a
Committee duly constituted by the Court as regards
publication of advertisements by the Government -
Guidelines, whether commend acceptance and if so whether
operative and enforceable u!Art. 142- Held: Where the field E
is open and uncovered by any government policy, to guide
and control everyday governmental action, in the exercise
of jurisdiction u!Art. 142, parameters can be laid down by
this Court- Recommendations with regard to the publication
of photographs; appointment of Ombudsman; carrying out F
independent audit and embargo on advertisements during
election time not approved - Publication of photographs of
functionaries of the State and political leaders, have the
potential of developing the personality cult and the image of G
a one or a few individuals which is a direct antithesis of
democratic functioning - Therefore, recommendations
permitting publication of the photographs of the President
and Prime Minister of the country and Governor or Chief
Minister of the State a/ongwith the advertisements is departed H
29
30 SUPREME COURT REPORTS [2015] 5 S.C.R.
A and there should be an exception only in the case of the
President, Prime Minister and Chief Justice of the country
who may themselves decide the question - Remaining
recommendations of the Committee appear to be
comprehensive, based on an analytical approach, are
B accepted - Said recommendations would serve public
interest by enabling dissemination of information and
spreading awareness amongst the citizens of the government
policies, achievements made and other measures - Since
C the directions issued u!Art. 142 cannot be comprehensive,
gaps, if any, would be filled up by the executive arm of the
government.
ManzoorA/i Khan &Anr. Vs. Union of India & Ors. (2014)
7 SCC 321; Umesh Mohan Sethi Vs. Union of India &
D
Anr: WP (C) No.2926 of 2012 decided on 12.12.2012;
Naresh Shridhar Mirajkar & Ors. Vs. State of
Maharashtra & Ors. AIR 1967 SC 1: (1966) 3 SCR 744;
Kesavananda Bharati Sripadagalvaru Vs. State of
E Kera/a &Anr. 1973 Suppl. SCR 1 : (1973) 4 SCC 225
- referred to.
Case Law Reference
(2014) 1 sec 321 Referred to. Para 3
F
(1966) 3 SCR 744 Referred to. Para 7
1973 Suppl. SCR 1 Referred to. Para 7
G CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No. 13 of 2003
[Under Article 32 of the Constitution of India]
WITH
H
W. P. (C) Nos. 197/2004 and 302/2012
COMMON CAUSE v. UNION OF INDIA 31
M. N. Krishnamani, Meera Bharti, Rishi Kesh, Prashant A
Bhushan, Govind Jee, Vibhu Tiwari, K. V. Mohan, for the
Appellant.
Mukul Rohatgi, AG, Maninder Singh, ASG, lndu
Malhotra, Suryanaryana Singh, S. S. Shamshery, AAGs, K. B
Radha Krishnan, Shailendra Sharma, Mohan Prasad Gupta,·
Harish K., B. B. Sawhney, Binu Tamta, V. Mahana, B. V.
Balaram Das, Ajay Sharma, M. P. Gupta, M. Khairati, D. S.
Mahra, Vikas Bansal, Mishra Saurabh, Bina Madhavan,
Pragati Neekhra, Anil Shrivastav, Ritu Raj, Sapam Biswajit C
Meitei, Z. H. Issac Haiding, Ashok Kumar Singh, Siddharth
Bhatnagar, Siddharth Mohan, RahulArya, Nirnimesh Dube, C.
D. Singh, Apoorv Kurup, Sakshi Kakkar, Rohit Rathi, Gopal
Singh, Rituraj Biswas, Shivam Singh, Manish Kumar, Pragyan D
Sharma, Heshu Kajina, P. V. Yogeswaran, A. Mariarputham,
Aruna Mathur, Yusuf Khan, K. Vijay Kumar,ArputhamAruna &
Co., V. G Pragasam, S.Aristotle, Prabhu Rama Subramanian,
Harshvardhan Jha, Aditya Narayan Singh, Samir Ali Khan, Ms.
Udita Singh, Chander Prakash, Navnit Kumar, Corporate Law E
Group, Hemantika Wahi, Jesal, GissAnotny, Puja Singh, Asha
Gopalan Nair, A. P. Mayee, K. V. Jagdishvaran, G. Indira,
SaurabhAjay Gupta, Nishant Bishnoi, Saurabh Singhal,Anip
Sachthey, Moh it Paul, Ashok Panigrahi, Ash mi Mohan, Santosh
Kumar, V. N. Raghupathy, Parikshi P. Angadi, Gopal Prasad, F
Jayesh Gaurav, Amit Sharma, Sandeep Singh, Ruchi Kohli,
Kaleeswaram Raj, Nishe Rajen Shonker, Resmitha R.
Chandran, Vinay Garg, Tanmay Agarwal, Uday Singh, Kuldip
Singh, G. N. Reddy, Madhumita Bhattacharjee, Avijit
Bhattacharjee, Balaji Srinivasan, Ramesh Babu M. R., Vinay G
Garg, for the Respondent.
The Judgment of the Court was delivered by
RANJAN GOGOi, J .. 1. Common Cause and Centre H
32 SUPREME COURT REPORTS [2015] 5 S.C.R.
A for Public Interest Litigation, two registered bodies, have
approached this Court 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
B individual functionaries of the Government or a political party.
The writ petitioners have also prayed for laying down of
appropriate guidelines by this Court to regulate Government
action in the matter so as to prevent misuse/wastage of public
C funds in connection with such advertisements.
2. In the above stated writ petitions the writ petitioners
while conceding the beneficial effect of government
advertisements which convey necessary information to the
citizens with regard to various welfare and progressive
0
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
E 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. According to the petitioners such practice
becomes rampant on the eve of the elections. Such
F 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 Article 14 and 21 of the Constitution
of India.
G
3. The writ petitions, filed as public interest litigations,
were resis~ed by the Union of India primarily on the ground
that the issues sought to be raised pertain to governmentnl
policies and executive decisions in respect of which it m 1
H 1 (2014) 7 sec 321
2 WP (C) No.2926 of 2012 decided on 12.12.2012
COMMON CAUSE v. UNION OF INDIA 33
[RANJAN GOGOi, J.]
not be appropriate for this Court to lay down binding guidelines A
under Article 142. The decision of this Court in Manzoor Ali
Khan &Anr. Vs. Union of/ndia & Ors. 1 and a pronouncement
of the Delhi High Court in Umesh Mohan Sethi Vs. Union of
India & Anr. 2 have been relied upon by the Union in support of
its above stated stand. B
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 C
relying on the principles laid down in the decisions specifically
referred to in the aforesaid order dated 23.04.2014, inter a/ia,
held that there is no dispute that "primary cause of government
advertisement is to use public funds to inform the public of
0
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. This Court acknowledged the E
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. As
the materials laid before the Court by the parties were found
to be inadequate for the purpose of evolving what wouid be F
the best practices keeping in view the prevailing scenario in
other jurisdictions across the globe, this Court felt the necessity
of constituting a Committee consisting of (1) Prof. (Dr.) N.R.
Madhava Menon, former Director, National Judicial Academy,
Bhopal (2) Mr. T.K. Viswanathan, former Secretary General, G
Lok Sabha and (3) Mr. Ranjit Kumar, Senior Advocate to go
into the matter and submit a report to the Court.
5. In terms of the order of this Court, the Committee
H
34 SUPREME COURT REPORTS [2015] 5 S.C.R.
A was duly constituted and after full deliberations in the matter, a
report had been submitted by the Committee suggesting a
set of guidelines for approval of this Court. It is the plea of the
petitioner that the said guidelines should be approved by this
Court and directions be issued under Article 142 of the
B Constitution of India for enforcement of the said guidelines until
an appropriate legislation in this regard is brought into effect
by the Parliament.
6. The contents of the guidelines suggested by the court
C appointed Committee may be usefully extracted hereinbelow:-
"GUIDELINES ON CONTENT REGULATION OF
GOVERNMENT ADVERTISING
D
(1) These Guidelines shall be called the Government
Advertisement (Content Regulation) Guidelines
2014.
(2) They shall come into force with effect from ..... .
E
2. APPLICATION:
(1) These Guidelines shall apply to all Government
advertisements other than Classified Advertisements.
F
(2) 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
G as distinct from legitimate Government messaging.
(3) These Guidelines shall apply to all -
(a) institutions of Government;
H
COMMON CAUSE v. UNION OF INDIA 35
[RANJAN GOGOi, J.]
(b) public sector undertakings; A
(c) local bodies and other autonomous bodies/
organizations established under a Statute.
3. DEFINITIONS:
B
In these Guidelines unless the context otherwise
requires:
(a) "Classified Advertisements" include public notices,
tenders, recruitment notices, statutory notifications. c
(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 D
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 E
other autonomous bodies/organisations established
under a Statute.
(d) "Government advertising" means any message,
conveyed and paid for by the government for F
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 G
or digital media.
OBJECTS:
The objects of these Guidelines are:- H
36 SUPREME COURT REPORTS [2015] 5 S.C.R.
A (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 (b) neither to belittle the need nor to deny the authority
of the Union and State Governments and its agencies
to disseminate information necessary for public to
know on the policies and programmes of Government
but only to exclude the possibility of any misuse of
c public funds on advertisement campaigns in order to
gain political mileage by the political establishment; ·
(c) to address the gap in the existing DAVP Guidelines
which only deal with the eligibility and empanelment
D of newspapers/journals or other media, their rates of
payment, and such like matters and not on how to
regulate the content of Government advertisements;
(d) to ensure that "all government activities satisfy the
E test of reasonableness and public interest, particularly
while dealing with public funds and property";
(e) to ensure that government messaging is well co-
ordinate, effectively managed in the best democratic
F traditions and is responsive to the diverse information
needs of the public.
5. GOVERNMENT ADVERTISEMENT TO INFORM
CITIZENS
G
Subject to these Guidelines Government may place
advertisements or purchase advertising space or time
in any medium to inform citizens about their rights and
responsibilities, about government policies,
H programmes, services or initiatives, or about dangers
COMMON CAUSE v. UNION OF INDIA 37
[RANJAN GOGOi, J.]
or risks to public health, safety or the environment. A
6. THE FIVE PRINCIPLES OF CONTENT
REGULATION
While placing advertisements or purchasing advertising
B
space in any media, the Government shall be guided by
the following principles, namely:-
(1) Advertising Campaigns to be related to
Government responsibilities:
c
While it is the duty of the Governmentto provide the public
with timely, accurate, clear, objective and complete
information about its policies, programmes, services and
initiatives since the public has a right to such information,
D
the content of government advertisements should be
relevant to the governments' constitutional and legal
obligations as well as the citizens' rights and entitlements.
(2) Adverti.sement materials should be presented
in an objective, fair and accessible manner and be E
designed to meet the objectives of the campaign:
(i) The material shall be presented in a fair and
objective manner and shall be capable of fulfilling
the intended objectives; F
(ii) Government shall exercise due caution while
deciding the content, layout, size and design of
the message including the target area and the
creative requirement of the intended G
communication in order to ensure that the
maximum reach and impact are achieved in the
most cost effective manner;
H
38 SUPREME COURT REPORTS [2015] 5 S.C.R.
A (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;
B
(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
c services;
(v) Content of advertisement should provide
information in a manner that accommodates
special needs of disadvantaged individuals or
D groups identified as being within the target
audience;
(vi) Multiple formats may be used to ensure equal
access;
E
(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·
F
and not directed at pr9moting political
interests of ruling party:
(i) Display material must be presented in objective
language and be free of political argument or
G
partisan standpoint:
(ii) Government advertising shall maintain political
neutrality and avoid glorification of political
personalities and projecting a positive impression
H
COMMON CAUSE v. UNION OF INDIA 39
[RANJAN GOGOi, J.]
of the party in power or a negative impression of A
parties critical of the government.
(iii) Advertisement materials must not-
(a) Mention the party in government by name;
8
(b) directly attack the views or actions of others in
opposition;
(c) include party political symbol or logo or flag;
c
(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. D
(iv) Government advertisement materials should avoid
photographs of political leaders and if it is felt
essential for effective Government messaging,
only the photographs of the President/Prime E
Minster or Governor/Chief Minister should be
used;
(v) Government advertisements shall not be used at
patronizing media houses or aimed at receiving F
favourable reporting for the party or person in
power
(4) Advertisement Campaigns be justified and
undertaken in an efficient and cost-effective
G
manner:
(a) Since it is the responsibility of government to
safeguard the trust and confidence in the integrity
and impartiality of public services and hence it
H
40 SUPREME COURT REPORTS [2015] 5 S.C.R.
A should be the policy of governments to use public
funds in such a manner as to obtain maximum value
for taxpayers' money;
(b) Advertisement Campaigns must be justified and
B undertaken in an efficient and cost-effective
manner;
(c) The Government shall-
(i) decide and announce beforehand, a list of
c personalities on whose birth or death
anniversaries, advertisements could be released
every year and specify which Ministry/Department
could release the same;
D
(ii) avoid the issue of multiple advertisements by
different departments and PSUs of the same
Government in Commemorative Advertisements
and shall issue a single advertisement only;
E (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. As far as possible, during
the period prior to elections, only those
F
advertisements required by law (such as public
health and safety advisories or job and contract
advertisements) alone be released by
governments;
G
(e) Advertisement campaigns should only be need
based; and
(f) In case of large volume advertisement campaigns,
post-campaign impact assessment is necessary
H
COMMON CAUSE v. UNION OF INDIA 41
[RANJAN GOGOi, J.]
to be included in the planning process itself and A
shall identify the indicators to measure success
when the campaign has ended.
(5) Government advertising must comply with
legal requirements and financial regulations B
and procedures:
Governments shall ensure that all Advertisements
comply with:-
c
(i) relevant laws regarding privacy, intellectual
property rights, election laws and consumer
protection laws apart from laws in respect of
broadcasting and media; and
D
(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 E
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.
F
(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. G
(3) As part of the performance audit of the Ministry/
Department/Agency-
(a) there shall be separate audit of the compliance of H
42 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Advertisement Guidelines by the Ministry/
Department/Agency concerned; and
(b) The annual report of such ministry/department/
agency shall publish the findings of such audit and
B the money spent on advertising.
(4) The regulatory bodies of print and electronic media
will be within their powers to impose sanctions
against such media groups acting against these
c Guidelines in seeking or obtaining government
advertisements.
8.GENERAL:
(1) These Guidelines shall be in addition to and not in.
D derogation of the existing Guidelines which are in
place under the existing Advertisement Policy of
Government.
(2) These Guidelines are equally applicable to State
E Governments and its agencies. The State
Governments shall undertake amendments to
whatever policies they have in this regard and
observe the Guidelines strictly in letter and spirit.
F (3) The Ombudsman may recommend suitable
changes to the Guidelines to deal with new
circumstances and situations.
(4) The Government shall take necessary steps to
G initiate necessary legislation on the subject, given
its importance for democracy, human rights and
good governance."
*******
H
COMMON CAUSE v. UNION OF INDIA 43
[RANJAN GOGOi, J.]
Whether the guidelines recommended should A
commend acceptance and if so whether the same
should be made operative and enforceable under
Article 142 of the Constitution.
7. In the earlier order dated 23rdApril, 2014, this Court, B
after holding that reasonableness and fairness consistent with
Article 14 of the Constitution would be the ultimate test of all
State activities proceeded to hold that the deployment of public
funds in any Government activity which is not connected with a
public purpose would justify judicial intervention. We would C
like to say something more.
Part IV of the Constitution is as much a guiding light for
the Judicial organ of the State as the Executive and the
Legislative arms, all three being integral parts of the "State" D
within the meaning of Article 12 of the Constitution. 3- 4 A policy
certainly cannot be axed for its alleged failure to comply with
any of the provisions of Part IV. Neither can the Courts charter
a course, merely on the strength of the provisions of the said E
Part of the Constitution, 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 F
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 G
policy.
3. Naresh Shridhar Mirajkar & Ors. Vs. State of Maharashtra & Ors. -AIR 1967
SC 1=(1966) 3 SCR 744
4. Kesavananda Bharati Sripadagalvaru Vs. State of Kera la & Anr. - (1973) 4 H
SCC 225 (Para 1703)
44 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
B 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.
c 9. 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
0
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 Government's Tenure
E
Governments at the Centre as well as in the States often
bring out advertisements on completion of a number of days,
months and years of governance. In such advertisements, not
only the 'achievements' are highlighted even the different tasks
F which are in contemplation are enumerated. By way of
example one of the points highlighted may be supply of
electricity to each and every village. Though the achievements
of a Government should not be a matter of publicity and really
G ought to be a matter of perception to be felt by the citizens on
the results achieved, such advertisements do have the effect
of keeping the citizens informed of the government functioning
and therefore would be permissible.
Advertisements announcing projects:
H
COMMON CAUSE v. UNION OF INDIA 45
[RANJAN GOGOi, J.]
On an everyday basis both the Government at the A
Centre as well as in different States issue advertisements
announcing events like laying of the foundation of different
development projects or the inauguration of projects
completed. In many of such advertisements the results obtained
in the particular field covered by the advertisement and the B
plan/targets for the future are highlighted. Though such
advertisements may look like a report card of the Government
there is an element of informative content in such
advertisements inasmuch as information is conveyed to the C
citizens as regards government programmes, policies and
achievements.
Advertisements issued on the occasion of birth/
death anniversaries and such other events:
D
Government advertisements are issued in the memory
of great personalities who occupy a significant place in our
history, such as, the father of the Nation, Mahatma Gandhi.
While such persons must certainly be remembered, what,
however, would not be justified is several similar, if not identical, E
advertisements issued by different Departments on the same
occasion as is happening today. One single advertisement
issued by a Central Agency should be enough to commemorate
the anniversaries of the few acknowledged and undisputed F
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 G
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
H
46 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
B 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
C 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.
D 10. A connected facet of the matter 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/
E 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. The D.A.V.P.
F guidelines do not deal with the said aspect of the matter and
hence the necessity of incorporating the same in the present
directions to ensure the independence, impartiality and the
neutrality of the fourth estate which is vital to the growth and
sustenance of democracy will have to be weighed and
G considered by us.
11. An analysis of the Draft Guidelines as prepared by
the Committee set up by this Court in the case may now be
made. The applicability of these Guidelines is to all Government
H advertisements other than classifieds and in all mediums of
COMMON CAUSE v. UNION OF INDIA 47
[RANJAN GOGOi, J.]
communication, thereby including internet advertising. The A
objective of these Guidelines emphasize the Government's
responsibility to disseminate information necessary for the
public to know about the policies and programmes of
Government. It principally spells out five principles to regulate
the contents of advertisements, namely, B
i) advertising campaigns are to be related to government
responsibilities,
ii) materials should be presented in an objective, fair and c
accessible manner and designed to meet objectives of
the campaign,
iii) not directed at promoting political interests of a Party,
D
iv) campaigns must be justified and undertaken in an efficient
and cost-effective manner and
v) advertisements must comply with legal requirements and
financial regulations and procedures.
E
The five broad Content Regulations contained in the
draft guidelines framed by the Committee are similar to the
provisions found in the Australian guidelines. However, under
each broad head specific regulatory parameters have been
indicated which seem to embody what would be good practices F
in the Indian context.
12. While under the first head the requirement of
conformity of Government advertisements with dissemination
of information relating to Government's constitutional and legal G
obligations and the corresponding rights and entitlements of
citizens is being stressed upon, under the second head
objective presentation of the materials contained in an
advertisement bearing in mind the target audience has been H
48 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
B 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 PresidenU Prime Minister or Governor/
C Cl1ief 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
o 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.
E
13. The Union Government and the State of Bihar have
filed their responses to the guidelines suggested by the
Committee. The State of Bihar suggests that some of the
recommendations of the Committee, details of which need not
F be noticed, are somewhat vague and require a more precise
definition or meaning. The only aspect of the suggestions
where the State has responded emphatically is with regard to
the recommendation to confine the publication of photographs
of the President and the Prime Minister of the country and the
G Governor and the Chief Minister of the State. According to the
State of Bihar such a restriction should not be imposed.
14. The Union in its response to the guidelines of the
Committee has been more categorical in suggesting certain
H
COMMON CAUSE v. UNION OF INDIA 49
[RANJAN GOGOi, J.]
changes as well as deletion of some of the recommendations. A
It will, therefore, be necessary to specifically notice the said
objections raised by the Union.
Content of the Response of the Union
Reconmendations
B
(1) Object of Guidelines
(a) To prevent arbitray use of The meaning of the v..ord
pullic funds for advertising ~ "arbitrary" accorcing to the
putlic authorities. Union needs to be more
specifically defined.
c
(b) To exclude the po$ibility of Accorcing to the Union the
any misuse of pl.blic funds on expression "polttical mileage"
ad-.ertisement campaign in is inappropriate and should
order to gain political mileage be deleted.
by the political establishments. D
(2) 5 Princieles of Content Regulation
(a) Clause (vii) under the 2na Accorcing to the Union this
point of the 5 p-inciples should be done oliy when
E
reconrnended by the the same is feasible and
Conrntttee - Every effort whenever public irterest so
shoud be mocfe to pre-test the demands.
; material in case of large scale
I campaign vvith target
I
; auciences. F
: (b) Clause (c)(i) under the 4ui According to the Union the
; point of the 5 principles of words "decide and announce
i Cortent R~uation states that beforehand" may be deleted
! "The Governrnert shall decide as the sarre is not feasible
I' and ainounce beforehand, a since i$uance of
. G
. list of J)3rsonaltties on Wiose advertisement deJ:Bnds on a
birth or death amiversaries, host of factors like availability
· ad-.ertisements could be of f1.11ds, last minute changes
released every ,ear and and the priortties of the
specify Wiich gCJlfernment.
Ministry/Depatment could H
release the same.
50 SUPREME COURT REPORTS [2015) 5 S.C.R.
A
(c) Clause (d) of the 4t1 point : According to the Ulioo
of the 5 principles of Cortent i advertisement that serve
i
Regulation states that "as far public irterest may l::e
as possible, during the 1 issued at any point c:i
period prior to electioos, only ! tirre.
B
those ad-.ertisements :
required by law (such as
pu~ic health and safety '
advisories or job and · 1
contract advertisements)
c alooe be released by the
governments.
(3) Orrbudsman
D The suooestion c:i the · The Ulioo objects to the
Corrm~ee wth regard to I 1
sarre and seeks deletioo
appointment of the : ·of the said
Ombudsman is in the ' ! reccmrendation as also
fdlo.ving terms: "The •the recomrendation wth
Governrrent shall appoint an I regard to sepcrate
E Ombudsman who shall be an , ~ perfamance auc:it of each
emirent expert independent • Ministry and publicatioo of
of the Government to receive ' the result of sudl aud~.
complaints of violations of According to the Ulioo
GLidelires and to : the Governrrent has
F recomnend action in. inbuilt rl'a;hirery for
accordance with the'I · redressal and for audit
Guidelires." 1 rn.rooses.
G 15. A consideration of the objections filed by the Union would
go to show that the Union seriously disagrees with the
recommendations of the Committee in respect of the following
matters:
H (1) restricted publication of photographs of the
COMMON CAUSE v. UNION OF INDIA 51
[RANJAN GOGOi, J.]
Government functionaries and political leaders A
alongwith the advertisement etc.
(2) appointment of an Ombudsman
(3) the recommendation with regard to performance
B
audit by each Ministry.
(4) embargo on advertisements on the eve of the
elections.
16. The rest of the objections are really in the nature of C
suggestions which having been considered we are of the view
that incorporation of the said suggestions made by the Union
or otherwise would not make any substantial difference to the
impact and effect of the said recommendations. It is the
recommendations with regard to the publication of D
photographs; appointment of Ombudsman; carrying out
independent audit and embargo on advertisements during
election time that will have to be specifically dealt with in some
details. E
17. The remaining recommendations of the Committee
appear to be comprehensive and based on an analytical
approach of the best practices prevailing in other jurisdictions.
The said recommendations, in our considered view, would F
serve public interest by enabling dissemination of information
and spreading awareness amongst the citizens not only of the
government policies; achievements made and targets to be
reached but also the rights and entitlements of the citizens
including the availability of a host of welfare measures. The G
said recommendations, therefore, commend to the Court for
acceptance and are accordingly accepted.
18. At this juncture we may very briefly deal with the
with the situation prevailing in other jurisdictions across the H
52 SUPREME COURT REPORTS (2015] 5 S.C.R.
A globe. 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
B 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
C 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
o in Canada, United Kingdom, New Zealand and Australia.
19. Insofar as Canada(Ontario) is concerned, it appears
that the object of issuing a governme~t advertisement is : (i) to
inform the public of current or proposed government policies,
E 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
F 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.
G 20. In some of the foreign jurisdictions there is a
mechanism for review of advertisements on fixed parameters
even before they are published and publication/issuance
thereof only upon passing of the required test. In Australia and
United Kingdom, there is an added emphasis on the cost
H
COMMON CAUSE v. UNION OF INDIA 53
[RANJAN GOGOi, J.]
effectiveness of advertising campaigns. In Australia, A
advertising campaigns of more than a particular pecuniary
value i.e. 1million Australian dollars require to undergo a cost
, benefit analysis wherein the best options to achieve the
intended objective of the campaign has to be determined
before launching the same. B
21. The good practices adopted in other jurisdictions
as noticed above do find adequate reflection in the
recommendations of the Committee which furtherJortify our
conviction to adopt the same. C
22. This will require the Court to consider the different
aspects of a government advertisement campaign highlighted
earlier on which we have reserved our comments. The first is
with regard to publication of photographs of functionaries of D
the State and political leaders alonwith the advertisement
issued. There can be no manner of doubt that one government
advertisement or the other coinciding with some event or
occasion is published practically every day. Publication of the
photograph of an individual be a State or party functionary not E
only has the tendency of associating that particular individual
with either the achievement(s) sought to be highlighted or being
the architect of the benefits in respect of which information is
sought to be percolated. Alternatively, programmes/targets F
for the future as advertised carry the impression of being
associated with the particular individual(s). Photographs,
therefore, have the potential of developing the personality cult
and the image of a one or a few individuals which is a direct
antithesis of democratic functioning. G
23. The legitimate and permissible, object of an
advertisement, as earlier discussed, can always be achieved
without publication of the photograph of any particular
functionary either in the State of a political party. We are, H
54 SUPREME COURT REPORTS [2015] 5 S.C.R.
A therefore, of the view that in departure to the views of the
Committee which recommended permissibility of publication
of the photographs of the President and Prime Minister of the
country and Governor or Chief Minister of the State alongwith
the advertisements, there should be an exception only in the
B case of the President, Prime Minister and Chief Justice of the
country who may themselves decide the question.
Advertisements issued to commemorate the anniversaries of
acknowledged personalities like the father of the nation would
C 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
0
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
E 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
F 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
G and parameters mentioned above we do not feel the necessity
of imposing a special curb on government advertisements on
the eve of the elections, as suggested by the Committee.
27. In an earlier part of the present order we had
H indicated the' power of the purse that Government
COMMON CAUSE v. UNION OF INDIA 55
[RANJAN GOGOi, J.]
advertisements invariably involve. Needless to say the A
concepts of fairness and even dispensation to all media/
publishing houses will have to be maintained by the
Government be it at the Centre or the States.
28. We close the matters on the aforesaid note by B
approving and adopting the recommendations of the
Committee except what has been specifically indicated above
with regard to
(1) publication of photographs of the Government c
functionaries and political leaders alongwith the
advertisement( s).
(2) appointment of an Ombudsman
D
(3) the recommendation with regard to performance audit
by each Ministry.
(4) embargo on advertisements on the eve of the elections.
29. We also make it clear that the present directions E
issued under Article 142 of the Constitution cannot be
comprehensive and there are several aspects of the matter
which may have escaped our attention at this stage. In this
regard, we would like to clarify that it is not the intention of the
Court to attempt to lay down infallible and all comprehensive F
directions to cover the issue at hand. The gaps, if any, we are
confident would be filled up by the executive arm of the
government itself inasmuch as the attainment of constitutional
goals and values enshrined in Part IV of the Constitution is the G
conjoint responsibility of the three organs of the State i.e.
legislative, executive and the judiciary, as earlier discussed.
Nidhi Jain Matters disposed of.
H
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