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!