Couple
of days back, I happened to overhear a rather interesting conversation between
a shopkeeper and his customers. As a usual practice in Kerala, the shop also functioned
as the newspaper reading centre for most customers. A senior citizen who was
reading the days’ newspaper welcomed the Supreme Court’s order on restricting
the use of photographs of political leaders and ministers in government
advertisements, issued at the cost of public funds. His friend, another senior
citizen questioned the logic of limiting the use of photographs to only the
President, Prime Minister, and the Chief Justice of India. A heated discussion
followed on why the Chief Ministers were excluded even while the Prime Minister
was included. Somebody said the judgment is applicable only for central
government issued advertisements and, hence, the Chief Ministers were not
permitted to be included. Another person countered this argument and stated
that the judgement is applicable to all public funded advertisements,
irrespective of who issued it. The one who was reading the newspaper commented
that, as usual in all matters related to India, this judgement also appears to
be a means for quid pro quo. As per his logic, once a person becomes a Supreme
Court Judge that person is not bothered about smaller fishes like Chief Ministers.
As long as in service, a Supreme Court judge has to keep the Chief Justice of
India, happy. The Judge must also ensure that the Prime Minster is kept happy so
that the post retirement placements are taken care of. The President, of course,
is the head of the nation and the one who appointed the Judge. Even while
issuing a very good judgement to prevent the misuse of public money, the judges
have kept interests of their present and future benefactors out of its purview,
said the old man.
I was
appalled to hear those words. Despite all the recent judgments that seem to
favor people with money, fame, or power, my belief in the judiciary continues
to be firm. I believe the judgements such as in the case of Amit Shah,
Jayalalitha, and Salman Khan are aberrations and our judicial system and its
judges are still honourable men and women, who hold the interests of justice above
everything personal. I was sure that if the judges of Supreme Court thought it
necessary to exclude Chief Ministers while including the Prime Minister, in the
permitted photographs to appear on government advertisements, there will be
solid logic and valid reasons. More so since the objective of the judgement itself
was curbing the practice of projecting the political and personal images, at
the cost of the public was indeed laudable.
I also
knew that the media is not very good in reporting the judgements, for reporting
the essence of a judgement requires reading the long judgements. It is much
easier to quote couple of sentences that can generate controversy and catch
public’s eyeballs and leave the serious reporting to others. So, I decided to check
on the social media, which has become a more reliable source for news and
perspectives. I tweeted a question,
asking why not CMs, if the PM and CJI are permitted on the government
advertisements. The responses also turned out to be confusing as some of them
ridiculed the judgement while others defended it by saying that it was only
applicable to the central government.
Then I decided to get to the bottom of the issue by doing what I should
have done at the first place- reading the judgement itself!
A
reading of the thirty-three page
judgement issued by the Bench consisting of Justice Ranjan Gogoi and Justce
Pinaki Chandra Ghose, on 13 May 2015, brought out the following facts:
1. The judgement was issued in a Writ
Petition filed by two NGOs, Common Cause and Centre for Public Interest Litigation.
2. The Writ petition had sought restraining
the central as well as all state governments from using public funds on
advertisements that were primarily intended to project individual functionaries
of governments of the ruling party. It was also sought that the Supreme Court
issue appropriate guidelines to regulate government advertisements.
3. After hearing the parties the Supreme
Court, on 23 April 2014, had appointed a three member Committee to look into
all matters related to the subject. The
Committee submitted its report along with draft guidelines, after conducting
deliberations on the subject.
4. The
Supreme Court noted that the draft Guidelines were based on the following five principles:
“i) advertising campaigns are to be related to government
responsibilities,
ii) materials
should be presented in an objective, fair and accessible manner and designed to
meet objectives of the campaign,
iii) not directed at
promoting political interests of a Party,
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”
(Ref Para 11 of the Judgement).
5. The
practical measures recommended to achieve the above stated five principles included
the following:
i) The
content and format meeting with the objectives of the campaign.
ii) Ensuring
political neutrality, and avoiding glorification of political personalities or
vilification of the opponents
iii) Avoid
any links to any political party name, logo, symbol, or website.
iv) If it is felt essential for effective
Government messaging, only the photographs of the President/Prime Minster or
Governor/Chief Minister should be used.
v) Advertisement
shall not be used to patronize media houses.
vi) Prior decision on the list of historical
personalities on whose birth or death anniversaries, advertisements could be released
every year, and the Ministry/Department authorized to issue the same.
vii) Govt to appoint an Ombudsman to look into complaints
of violations of the Guidelines.
viii) Special performance audit by concerned
authorities on compliance.
6. After conceding
that it is not feasible to list all situations where government advertisements
are to be issued, the Court attempted a broad categorization of the permitted
advertisements, as follows:
i) Advertisements highlighting completion
of a fixed period of the Government’s Tenure
ii) Advertisements announcing projects.
iii) Advertisements issued on the occasion of birth/death
anniversaries and such other events.
iv) Advertisements announcing policies and
benefits for public (Ref Para 9).
7. The State
of Bihar had challenged the guideline that called for restricting the use of
photographs to the President and the Prime Minister of the country and the Governor
and the Chief Minister of the State. The
judgement is silent on any aspect of hearing the states, other than Bihar.
8. The Union
of India challenged various clauses of the draft Guidelines. According to the
Supreme Court, the serious disagreement were in respect of the following
matters:
(1) 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 (Ref Para 15).
9. The Court also
examined the good practices on the subject, prevalent in other jurisdictions. The
Court found that barring the issues where serious objections were raised by the
Union of India, the Guidelines prepared by the Three Member Committee were
acceptable.
The
court went on to deal with each of the above listed objections. However,
keeping the readers’ patience in mind, I shall restrict this post to the first
and fourth points of disagreement only.
Firstly, on the use of the photographs,
the Court held, “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”
(Para 22; all emphasis in this post are supplied by me). The Court also stated, “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” (Para 23).
No democrat in their right mind can have anything in disagreement with these
observations of the Court. However, the court went on to state the following:
“We are, 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 along with the advertisements, 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” (Ref Para 23).
It is an established legal principle that a judicial pronouncement
must be a speaking order. The Court, while departing from the view of the
Committee, does not cite any reason why it formed another view. This silence,
in my opinion is bad law making, especially since the law making powers of the Judiciary
is an exception and not a rule. If you
read the pronouncements from Para 22 and Para 23 of the judgement quoted at the
beginning of this paragraph, it becomes clear that the second portion is in
effect self-contradictory. Should we
understand that the Supreme Court is fine with “developing the personality cult and the image of” the “President, Prime Minister and Chief Justice
of the country” but not others? What is the rational for departing from the
objective suggestion of the Committee and adopting only these three functionaries?
Where did the question of Chief Justice
of India come in from? Why not Chief Ministers, if the Prime Minister is permitted?
Isn’t this judgement going against the
letter and spirit of the federal structure adopted in our Constitution? Can the
powers vested under Article 142 of the Constitution be exercised against the
very basic structure of the Constitution? Why is the judgement leaving it to the
three chosen functionaries, by stating “who
may themselves decide the question,” to decide whether they want their photographs
to be included in the advertisements? Why should it be left to the beneficiaries
to decide whether they want to develop a personality cult and image for themselves?
Coming
to the next point on the special curb recommended by the Committee, on the
election eve government advertisements, again the Judges stated no reason for
going against the recommendation of a Committee appointed by themselves. It is no secret that the election eve
advertisements are issued with the objective of boosting the chances of the ruling
party. It is these election eve
advertisements that are against the spirit of democracy and fair elections. I
am not questioning the right of the Court to reject the recommendation of the Committee.
I am questioning the absence of reasons other than merely stating “we do not
feel the necessity of imposing a special curb” to depart from the
recommendation. If the Judges were expecting the “three member body consisting of persons with unimpeachable neutrality
and impartiality and who have excelled in their respective fields” (Ref
Para 24), to be appointed by the Government in place of the recommended
Ombudsman, would curb the potential misuse of election eve advertisements, it
was only proper for the judgement to say so.
In my
view a judgement is a bad judgement when it leaves so many legitimate questions
unanswered! Especially, the exception on the use of photographs of PM and CJI leaves so many
questions unanswered so that, with all due respect to the court, I have to say
the court created a bad law!
I
wouldn't agree with the gentleman whose opinion on possible motives was cited
at the beginning. However, as the judgement does not provide any reasons or
materials that I can rely upon, I wouldn't dare to challenge his perception, no
matter how bad it sounds for those who believe in the judiciary!
