ADVERTISEMENT in newspapers and periodicals by governments, central and state, for political ends is an old vice. They carry photographs of ministers of government and chairmen of public-sector undertakings to promote the interests of the ruling party at the expense of the taxpayers’ money.

Way back in 1977 the federal constitutional court of Germany struck down such advertisements as being violative of the basic law (the constitution).

The Supreme Court of India recently ruled on the abuse, but none too well. Two NGOs, Common Cause and the Centre for Public Interest Litigation, sought a writ to restrain the Indian union and all the state governments from using public funds for advertising in a manner so as to project the personalities, parties or particular governments and to lay down binding guidelines in order to end the abuse which violates Article 14 of the Indian constitution.

Article 14 embodies the fundamental right to equality before the law, while Article 19 guarantees protection of “personal liberty”.

The central government cited the guidelines it had framed for selection of newspapers and periodicals eligible to be awarded the advertisements. They did not address the crucial issue of the contents of the advertisements. None directed the relevant publicity department to reject advertisements which crossed the divide between the party and the state.

Government ads must be subject to guidelines.
The fundamentals were laid down in a series of earlier rulings of the Supreme Court. “Article 14 of the constitution of India applies also to matters of governmental policy and if the policy or any action of the government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.”

The court held this view since the primary object of government advertisement is to use public funds to inform the public of their rights, and entitlements as well as to explain government policies, programmes, services and initiatives.

The petitioners produced numerous government advertisements which failed to disseminate any such information to the public but only glorified the accomplishments of a particular government.

“While the boundary lines can blur, we need to distinguish between the advertisements that are part of government messaging and daily business and advertisements that are politically motivated,” the court said.

It noted that governments around the world spend huge amounts of money for advertisements in their media and most of the countries have faced similar situation. Their solution was to frame government advertising guidelines.

Canada and Australia were prominent among them. Australia adopted a new policy to regulate government advertisement in response to nearly a decade of abuse, during which public advertising was corruptly used to promote a partisan agenda.

Its aim was to depoliticise public advertising, prevent conflict of interest, and curb power in such a way that the state could not exploit public advertising funds for individual or political gains.

Five principles were laid down in the Guidelines on Information and Advertising Campaigns by Australian Government Departments and Agencies. They read thus — Principle 1: Campaigns should be relevant to government responsibilities.

— Principle 2: Campaign materials should be presented in an objective, fair, and accessible manner and be designed to meet the objectives of the campaign.

— “Principle 3: Campaign materials should be objective and not directed at promoting party political interests.

— “Principle 4: Campaigns should be justified and undertaken in an efficient effective and relevant manner.

— “Principle 5: Campaigns comply with legal requirements and procurement policies and procedures.

The Supreme Court appointed a committee to suggest the guidelines for its consideration. The court overlooked one major aspect. Apart from fundamental rights, there is a fetter on the state’s powers. All assets and properties are vested in the union or the state governments for the purposes of the union or the states.

The constitution confers express legislative power in respect of the property of the union, and works, lands and buildings vested in a state, which is subject to the provisions of constitution.

The latter provides for the levying, collection and expenditure of revenue of the union and the states but such revenues are to be expended “for the purposes of the union or the states” alone and not to further any political party’s interest; only for a public purpose.

The union and the states hold their assets and properties impressed with an obligation to use them for their respective purposes, which are public purposes.

All legislative and executive action in relation to every government property is subject to constitutional limitations. They govern all state action and in all spheres. The implications of these limitations are far-reaching.

The writer is an author and a lawyer based in Mumbai.