Monday, May 18, 2015

Supreme Court’s Guidelines on Government Advertisements- A Bad Law with a Good Intent?

                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!

Tuesday, May 12, 2015

On Crossing the Milestone of 100,000 Visitors!

 Thank you all, for making it Possible!

And forgive me for this self-congratulatory reflection!

When I created this blog titled Thoughts, on August 29, 2008, my intention was to simply experiment with a new medium that I came across.

I described the objective of my Blog in the following words:
This blog functions like an exhaust valve to bring out my cluttered and sometimes confused thoughts. Please give your comments so that we can make this more useful, with wider perspectives.
It took me five months to do another post, and it took me three years to cross the milestone of having more than 100 visitors in a month!

My blogs took a definite political direction when the ‘India Against Corruption’ movement began what was considered by many people, at that time, as India’s Jasmine revolution.  Many of my arguments got proved right, by subsequent events.

What followed was the blitzkrieg of Narendra Modi’s takeover of Indian politics.  I did many posts against what I genuinely felt as a danger to the social fabric and constitutional framework of India. The last one year of Modi’s governance is clearly showing that my fears were not entirely misplaced. The systematic undoing of each and every authority that can help the civil society and individuals against the hegemony of state are indication enough for what is yet to come. CIC, CVC, Lokpal, NHRC, changes in the Land Acquisition Act, dilution of the Environmental laws are only the tip of the iceberg. I hope my worst fears will not become true, and the democracy of India will remain powerful enough to deal with the intentions of Modi and the groups that created him.

As a concerned citizen, I could not remain aloof to the political development and it reflected in my posts. However, to a large extent, I continued to share those apolitical thoughts that are dear to me. Those are the posts that gave me many valuable friends from the other side of the political divide. My wish is to increase the frequency of such posts that focus on various aspects of the day to day affairs of individuals, families and societies.

Today, my Thoughts crossed the 100,000 number on the visitors’ count. I do not know the significance of this number to the blogging world, but I count this event among one of the greatest achievements of my life! I am neither a celebrity nor an established writer to take the numbers for granted. Apart from the urge to share my perspective on issues, each increasing number on the visitors’ count is what motivates me to continue writing. 

There are many people, especially from Twitter, who encouraged and supported my Blog by giving feedback, commenting on the posts, or sharing the links.  But for their active support, I am convinced I would not have reached anywhere near this important milestone of 100,000 count. Those interactions also gave me many valuable friends- some of them sharing my ideas and some of them opposed to those ideas.

I, once again, thank everyone who contributed in any manner, to my blog reaching this important milestone.  

These posts will continue to share my cluttered, and often confused thoughts.  I will never claim any absoluteness of my views. However, I promise sincerity in all my posts! I, once again, solicit readers’ perspectives on the issues raised in my posts so that I (and other readers) can widen the perspectives. 

Monday, May 4, 2015

#SorryNepal Don’t Judge us by the Standards of our Media!

The recent earthquake, with its epicenter in Nepal and affecting many part of the North India was yet another reminder how the nature is oblivious of the man-made boundaries.  Only blind ones can ignore the fact that the lives and welfare of all people in this world are interconnected. Therefore, we all have to deal with the calamities, crises, and challenges faced by people in any part of the world through mutual cooperation.

However, human minds are not as evolved as the nature. The effect of nationalities and man-made boundaries on the human psychology is enormous. Instead of contributing something worthwhile to the world and feeling legitimate pride, human beings prefer to be proud of the artificial boundaries and identities.  Even while dealing with common disasters one has to remain sensitive about human feelings such as pride and patriotism.

When the Indian government and its armed forces responded to the tragedy in Nepal in a good neighborly fashion, it was heartening, and it was as it should be. However, soon the Indian Media stepped in and started reporting from the ground! Some elements of the media found yet another opportunity to inflate the image of their benefactor (or is it their creation?) Narendra Modi, the Indian Prime Minister, by eulogizing India’s efforts at rescue as something like a personal gift from Modi to people of Nepal (just like the 2500 KGs of Sandalwood gifted to a temple in Nepal).  

Soon, the entire sangh parivar propaganda machine joined the said elements of Media (for convenience, let us refer to these elements as Modia) and began spreading misinformation. Tweets by spokespersons of BJP that RSS is sending 20,000 volunteers to Nepal for rescue efforts (eventually denied by RSS itself) was only a beginning. Soon, Modi’s PR machinery and Modia joined forces and trended #ThankYouPM, as if India under any other PM would not have helped a neighbor, at such a time of distress.

Narendra Modi and his PR machinery are used to exploiting natural calamities for inflating his image. Be it Rs 5 Crore donation to Bihar at the time of Kosi floods, or so called mass Innova evacuation from Uttarakhand, Modi finds an opportunity to tell the world how great a man he is! This time in Nepal, he was clearly overdoing it, considering the fact that Nepal was an independent country and a separate nation, and the Indo-Nepal relationship cannot prosper without taking into account the sensitivities of the people.

In this era of instant social communication, it is perfectly fine that the Prime Minster of Nepal who was on foreign travel came to know about the earthquake, back home, from a tweet by Indian Prime Minister. It was also fine when the Nepal’s Prime Minister informed people about how he got the news. However, when the Prime Minister of another country starts telling the world that the PM of Nepal got to know about the earthquake from his tweets, it hurts the pride of both the people and government of Nepal. You don’t have to be an expert in diplomacy to know the effect of such statements.

All these indications clearly showing that the Modia and Modi PR were hurting the cause of neighborly relationship, I tweeted cautioning those who cared:

I am afraid, the over hyping of India's help in rescue operations is going to affect our long-term relationship with Nepal, adversely.

10:28 AM - 29 Apr 2015

When I tweeted the above, I was looking at the long-term effect of continuously telling our neighbors about how great we are and how we were helping them. However, the ground reality was even worse, apparently. The PR and TRP objectives of the Modia had an immediate effect on the people of Nepal, who resented such highhanded approach to rescue and relief efforts.

            To mark their resentment, the people of Nepal top trended #GoHomeIndianMedia on 03 May 2015. The tweets expressed under the hashtag were scathing in their criticism of Indian Media’s conduct in the disaster struck Nepal.  As an Indian, I felt guilty for our people adding insult to the injury suffered by our neighbors. I tweeted:

#SorryNepal don't judge us by the standards of our modia, oops media!
4:45 PM - 3 May 2015

            What I did not expect was the reaction to the above tweet from people of Nepal. I did not expect the message to reach people of Nepal as I did not have any significant followership in that country.  However, to my surprise, many people from Nepal responded to my tweet. Barring one or two tweets that were not very friendly, all the replies from Nepal emphasized one point- that they were against Indian media only and they fully appreciated Indian people and the help by Indian defense forces. Let me quote some of the responses without the identity of the persons:

आँप लोगो को सहयोग हमारे लिय सम्मान हे मगर हमारे देस मे दादागिरी नहि चलेगा
6:14 PM - 3 May 2015

we are thankful to indian people and indian government for your more support to us, we just hate indian media .
7:33 PM - 3 May 2015 · Details

India has helped us too, we are grateful for that.
7:36 PM - 3 May 2015 

we are thankful to india nd indians for ur support. Disgraceful are those media who cant understand the pain
7:54 PM - 3 May 2015 

you guys are awesome!!! Will never forget India's help:) Fuck indian media though...
8:32 PM - 3 May 2015 

No you are really nice people. We know how you guys are plagued by #IndianMedia and so you call them #presstitutes
9:22 PM - 3 May 2015

We know, don't worry. We have high opinions of you. #GoHomeIndianMedia
7:15 AM - 4 May 2015 

This is for Indian media but not to Indian people #GoHomeIndianMedia
11:00 PM - 3 May 2015 ·

            The reason why I quoted these responses is because it is easy to create an image of an ungrateful people, especially when the media is the target of their attack.  The Prime Minister of India had himself commended Indian media for the ‘great work’ done by them:


Mention must be made of the media. They are bravely covering the disaster from the ground. Thanks
12:21 pm – 27 Apr 15

I can understand the Prime Minister commending the relief workers and soldiers engaged in the rescue operations, but to praise the media contingent is beyond any comprehension. More so, when we look at the impact that the so called great reporting has made on the people of Nepal, as reflected in the responses quoted above!

            The responses in large numbers also indicate the noble intentions of the people of Nepal. They took the pain not only to trend #GoHomeIndianMedia, but also to make it clear that their resentment is limited to the Media and not to the people of India. It also shows that not all people of Nepal are sitting in a corner and crying about the misfortune, but fighting back to regain their lives, dignity, and honour! It is important to note this, since another Modia personality had expressed doubts how in the aftermath of those devastating earthquakes Nepalis can sit and trend something like #GoHomeIndianMedia, perhaps smelling or indicating a conspiracy by someone, to deflate the great man’s image!

            Nepal is still struggling against the misfortune and aftershocks. Let us wish them safety and a speedy return to normalcy.  Let us provide whatever assistance we can, without making it a cheap show. Let us not try and milk natural calamities in neighboring countries, for image building and PR.

            Diplomacy is what guides international relations. Being diplomatic includes taking others’ sensitivities into account while dealing with them. Nepal is a sovereign country and let us respect those feelings.

            I leave the following tweet for the readers to ponder:

एक बात याद रहे नेपाली हर बातो टेक्निक मे पिछे होगा पर बिरोध और आन्दोलन मे दुनियाँमे अगे है #GoSriyaIndiaMedia #GoHomeIndianMedia

9:05 PM - 3 May 2015

P.S: Not sure if it is linked to the last day’s trend or people’s sentiments in Nepal, but the government of Nepal has now urged all foreign rescuers to leave the rescue work to the local authorities and return home!