POLITICAL ADVERTISEMENTS: BALANCING FREE SPEECH CONCERNS IN LIGHT OF COMMON CAUSE V. UNION OF INDIA

Advertisements by the government and political parties are not an uncommon sight in the print media today. Ranging from tenders and notices to full page advertisements glorifying the contribution of certain individuals and parties, the quantum of public money spent on such political advertisements has been criticized by many, despite the free speech concerns associated with the issue. This article seeks to explore this issue in light of other competing interests in order to better comprehend the stand taken by the Supreme Court in Common Cause v. Union of India.

I. INTRODUCTION

“Under our Constitution, probably, no values are absolute. All important values, therefore, must be qualified and balanced against, other important, and often competing, values.”- Justice S. H. Kapadia (here)

 Political advertising, a phenomenon that has come to acquire even greater significance in the present context, with many significantly attributing the landslide victory of the now incumbent government to its sophisticated marketing and campaigning strategies, is not an entirely new conception in the Indian context. Political slogans and advertising as a strategy of an incumbent government to garner votes in an upcoming election can be traced back to as early as 1965 when former Prime Minister Lal Bahadur Shastri coined the slogan ‘Jai Jawan, Jai Kisan’, which is believed to have contributed to Congress’s return in 1967 (here).

Having said so, the practice of political advertising has received much criticism from several corners in the recent past, including several publicly spirited individuals, due to the enormous burden that it has come to impose on the exchequer, often with the sole intention of gaining political mileage for the advertisers. This criticism, which has only increased manifold over the past decade, has, arguably, reached its logical end with the Apex Court’s decision in Common Cause v. Union of India (hereinafter Common Cause case) (here). Of the many constitutional issues that surface in the course of the debate around political advertisements, the central one remains the interaction of fundamental rights guaranteed under Article 19 of the Constitution with the possible regulation of political advertisements. Though two facets of Article 19, one could argue, become relevant in this context: first, the possible right to freedom of speech and expression of the government and, second, the right of Indian citizens to know and have access to information, only the latter has been emphasized on in the aforementioned case as it alone formed the basis of the government’s arguments on merit.

This decision highlighted yet another conflict in constitutional values, one between the right of citizens to know and receive information and the interest of the public in ensuring that public funds are not utilized by the political parties and incumbent governments, state and central, to further political and partisan ends. It is nuances of this apparent conflict that the author seeks to delve into through the course of this essay to assess how justified the Supreme Court’s stand on the issue is.

II. COMMON CAUSE V. UNION OF INDIA- AN OVERVIEW

Brought before the Supreme Court as Writ Petitions in public interest by Common Cause and Centre for Public Interest Litigation, this case accused political parties, central and state governments and their instrumentalities of flagrant abuse of public funds. In light of several full page advertisements in the print media in 2003 and 2004, the Petitioners alleged that use of public funds for politically motivated advertisements glorifying particular entities constituted abuse of these funds and a blatant violation of the rule of law. The central argument of the States on merit, however, was that the advertisements in question are not intended to further partisan ends but to disseminate information to the people at large regarding government’s programmes and policies, thereby enabling people to make informed choices and strengthening their fundamental right (under Article 19(1)(a)).

Though allowing the Writ Petitions and appointing a committee to formulate guidelines on political advertising, in light of the legal vacuum that exists on the issue currently, the Supreme Court acknowledged merit in arguments of both parties, not rejecting either in toto. It acknowledged the fundamental right to know and receive information and its significance in a democracy and also agreed with the Petitioners insofar as they alleged that some political advertisements serve no public interest but merely imposed a burden on the exchequer for the benefit of political parties. This approach of the Court is evidence of the fact that the issue of political advertising throws up a constitutional challenge in the form of a conflict between two equally significant constitutional values, one that must be resolved, as Justice S. H. Kapadia believed, by balancing the two competing values.

III. BALANCING COMPETING CONSTITUTIONAL VALUES

Right to know was acknowledged as a fundamental right under Article 19(1)(a) by the Supreme Court in as early as 1975 in the case of State of Uttar Pradesh v. Raj Narain (here). This aspect of right to freedom of speech and expression was further developed in Union of India v. Association for Democratic Reforms (hereinafter, ADR case), amongst other cases, wherein the Supreme Court held that Article 19(1)(a) include within its ambit the “right to seek, receive and impart information and ideas of all kinds” (here). This case highlighted the right of voters to know antecedents of candidates contesting elections for their MPs and MLAs as part of their right under Article 19(1)(a) because voting is a means of expression and information about candidates is necessary for exercising the said right meaningfully.

Seeing as how this right to know and receive information, especially about our political representatives, is firmly established within our constitutional framework, it becomes necessary to evaluate, in light of this right, advertisements released by political parties and governments, highlighting their programmes and achievements, as was noticed in the Common Cause case. It is pertinent to note at this juncture that this case was not an isolated incident of voices being raised from judicial quarters opposing misuse of public funds by parties to gain political mileage through advertisements. Another prominent incident of similar nature occurred in May, 2013, when the Lokayukta, Justice Manmohan Sarin, indicted the then Delhi Chief Minister, Smt. Sheila Dikshit, of misusing public funds on an advertisement campaign to further political ends and recommended that either she or the Congress return Rs. 11 crore to the exchequer (here).

As has been acknowledged by the Supreme Court, a legal vacuum in this regard, in that there exist no rules or guidelines that may be applicable to political parties and government functionaries, except the Model Code of Conduct, which is in force only for a limited period of time (here). At all other times, political parties and governments are free to advertise in the manner they wish and disseminate the information that they deem fit. The combination of this legal vacuum and expansion of the scope of Article 19(1)(a) has led many parties to use people’s right to know as a defence to further their political goals at the public’s expense with no recourse left to the public. It is an accepted position in law that malafide and unreasonable use of public funds cannot stand the test of Article 14. It is the argument of the author that permitting these parties to take advantage of this legal vacuum and people’s right to know would amount to permitting them to do indirectly, what the law (in this case, Article 14) does not allow them to do directly. This would, indeed, be contrary to accepted notion of law that one cannot do indirectly what one in not permitted to do directly (here). In light of this apparent conflict between the competing interests involved, there is certainly merit some merit in the inclination of the Supreme Court to issue guidelines for political advertisement.

What gives this debate an even more interesting dimension is the extent to which BJP’s political advertising strategy has been given credit for its victory in the 2014 General Elections (here). Indeed, the expenses incurred for the campaigning did not burden the exchequer as the BJP was in the opposition until May 16th, 2014. However, the complexities of the balance sought to be struck between people’s rights and prevention of misuse of funds for political benefit surface when Modi’s advertisement campaign is examined closely in light of the fact that he now heads the government. The team of advertising professionals behind ‘Brand Modi’ has worked consistently in a disciplined manner over several months to create and maintain this brand that came to overshadow all other efforts, and succeeded in contributing majorly to Modi led BJP’s victory (here). Drawing parallels between their strategy and to those of Pepsi and Cadbury at the time when news of pesticides and other chemicals in their products diminished their respective markets, Modi’s team takes pride in the strategies that have been adopted to systematically erase from the public memory incriminating information regarding the 2002 riots and tactfully moulding the public opinion with promises of development and growth. This selective information dissemination on a huge scale has practically buried criticisms levelled by scholars like Martha C. Nussbaum, who have highlighted flaws in Modi’s Gujarat Model (here). Who is to say that the same team backing Modi’s pre-poll strategy will not be working tirelessly to project a desirable image of our Prime Minister during the course of his term? If these tactics were to continue, now at the expense of the exchequer, would that too be shielded from any regulation in the guise of disseminating information and promoting free speech of the people?

IV. CONCLUSIONS AND RECOMMENDATIONS

It is the author’s opinion that citizens’ fundamental right under Article 19(1)(a) to seek and receive information regarding our political representatives, entails receiving objective and factually correct  information about the government’s policies and programmes rather than information selectively disseminated, glorifying certain individuals or political outfits. Surely the Supreme Court, in the ADR case, when stating that it is axiomatic, in every modern democracy, that citizens have a right to know about the Government’s affairs, did not mean that the Government and political parties have the right to provide information selectively in an attempt to manipulate the public and grind their political axes at the cost of public funds. Moreover, to the extent that the Supreme Court is the guardian and custodian on fundamental rights enshrined in the Constitution, it is also duty bound to ensure that fundamental rights are not misused by vested parties to bypass other constitutional principles and administrative propriety. It is in this context that Supreme’s Court’s attempt to balance rights under Article 14 and free speech concerns should be evaluated.

It is not the author’s argument that the distinction between an advertisement which informs the public from one that merely glorifies an individual is a simple task. This is so because one could argue that informing the public of which MP or MLA was responsible for a particular contribution of the government may be information relevant for a voter to decide which candidate to vote for. It is for this reason that the author believes that concerns highlighted in this essay may be sufficiently addressed by a method analogous to the one currently employed in case of political cable TV advertisements, whereby all advertisement undergo a screening process carried out by the Election Commission or an officer designated by the Election Commission (here). A similar mechanism for the print media, if included in the guidelines, would ensure that relevant and important information relating to programmes and policies of the government is not withheld from the public and, at the same time, taxpayers’ money is not misused for the sole purpose of furthering political interests. The Election Commission or the designated officer will certainly be burdened with the arduous task of weighing the merits of each political advertisement against the cost it would impose on the exchequer. However, it might be a reasonable price to pay in light of the constant need to balance competing constitutional values in an evolving democratic society like ours.

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