If there is one thing that is unique and common to the five states that are in the process of electing new assemblies, it is the rampant and unabashed misuse of public money by their incumbent governments by rolling out massive advertisement campaigns for partisan and political objectives.
State governments in Uttar Pradesh, Punjab, Uttarakhand, Goa and Manipur were heavily under the scanner since early last year for various reasons. If in Goa it was charges of corruption levelled by its former governor and ministers, in Uttar Pradesh it was the mishandling of the pandemic and in Punjab and Uttarakhand it was a constant tussle between members of the ruling party that led to severe criticism from several quarters.
Those in power felt that an image makeover was therefore needed before the elections. This led to governments spending crores of public money to roll out advertisements eulogising their term in power. These advertisements have been everywhere – on social media, billboards, metro stations, newspapers, websites and bus stops, to name just a few.
Politics is all about perception and the benefits of advertisements in manufacturing perception by overriding material reality cannot be overstated. There are two kinds of advertisements in India today that have direct political origins – party funded advertisements and ‘government advertisements’ funded by the public exchequer. While the former is directly political in nature and is allowed to be so, the latter is not and is currently regulated by the Supreme Court’s 2015 judgment in Common Cause vs Union of India.
In Common Cause, the Supreme Court was hearing the issue of misuse of public funds on government advertisements. The petitioners had argued that advertisements funded by public money were being used to project personalities and political parties, thereby promoting personal and political interests. The court, while terming the issue as “sensational and significant”, constituted a committee headed by N.R. Madhava Menon to study the issue and suggest guidelines to the court.
The committee came out with a set of exhaustive guidelines, most of which were upheld by the court. Broadly, the objectives of the guidelines were to prevent arbitrary use and misuse of public funds, to ensure all government activities satisfy the test of reasonableness and public interest while dealing with public funds and to ensure that government advertising is effectively managed in the best democratic traditions.
All vaccine certificates issued in India carry a photo of Prime Minister Narendra Modi.
The Supreme Court in this case spelt out five principles on which government advertisements would be henceforth regulated. These were: First, advertising campaigns to be related to government responsibilities; second, materials should be presented in an objective, fair and accessible manner and designed to meet objectives of the campaign; third, not directed at promoting political interests of a party; fourth, campaigns must be justified and undertaken in an efficient and cost-effective manner; and finally, advertisements must comply with legal requirements and financial regulations and procedures.
The court was equally mindful of the fact that government advertisements have an informative quotient. This judgment, therefore, made an attempt to balance the need for government advertisements on the one hand and the need to prohibit any misuse of public funds on the other.
However, post the 2015 judgment, governments have devised new ways and means to publish advertisements that are clearly malafide and arbitrary, violative of the Supreme Court guidelines and are solely intended to promote personalities and incumbent governments rather than providing any useful information to the people or serving any significant public interest. This has therefore effectively made a complete mockery of the 2015 judgment.
Concerns still remain
There are at least five specific issues surrounding government advertisements that require our immediate attention.
First, the practise of publishing advertisements by state governments outside the territorial limits of their respective states. What could reasonably justify a government in Delhi publishing its advertisements funded by Delhi’s taxpayers’ money in states like Punjab, Goa, Telangana, Chhattisgarh, Gujarat, Bihar and Maharashtra? It has now become a common practice for state governments to roll out extensive advertisement campaigns outside the territory of their respective states. This is clearly disproportionate, unreasonable and not ‘need-based’ unless, of course, if such advertisements are directed towards inviting stakeholders to the state for attending a business summit/conclave, promoting tourism or seeking private investment. Such misuse of public money is also arbitrary and does not amount to obtaining maximum value for the taxpayer’s money, all of which are clear violations of the 2015 judgment.
Second, publication of government advertisements in the form of advertorials. It is significant to understand that advertorials are advertisements that are disguised to look like real news and read like news articles. They lack readily visible markers and have no prominent disclaimers. Most of the time, there are umbrella disclaimers only on the front page. Disclaimers, if any, are deceptively referred to as “Consumer Connect Initiative, Brand Connect, Open Avenue, Focus, Media Marketing Initiative, An Impact Feature, Media Solution Initiative”. The publication of government advertisements in the form of advertorials – which, by their very nature, are designed to be deceptive and misleading – is nothing but paid news.
Third, publication of government advertisements during/prior to elections. Allowing government advertisements to be published during the run up to elections is undemocratic and creates a highly unequal playing field for other parties contesting the election. It strikes at the very concept of free and fair elections that is a hallmark of any democratic society. Government advertisements before an election are mostly presented as “feel-good campaigns” intended to create favourable perception, influence the voter’s minds and encourage a certain kind of political environment. These advertisements have usually nothing to do with informing people about government schemes, but blatantly advertise (often falsely) the achievements of the party in power. This gives an unfair advantage to the ruling party as opposed to those in the opposition thereby distorting the level playing field for parties and negatively impacting the electoral prospects of the opposition. In fact, it has been seen that governments tend to disproportionately increase their advertisement budget during their last year in office while the Union government on the other hand allocates huge sums of public money in poll-bound states as compared to the allocation in non-poll bound states.
Fourth, issues concerning the Committee on Content Regulation of Government Advertisements (CCRGA). In its 2015 judgment, the Supreme Court had mandated the government to set up a three-member committee, namely CCRGA, to oversee the implementation of its guidelines. Unfortunately, a bare perusal of the functioning of the CCRGA in the last five years will show that it is an ineffective body with no powers at all. All that the CCRGA can really do is send recommendations to the information and broadcasting ministry on the complaints it receives. This means that the buck stops with the ministry to either accept those recommendations or not. Needless to say that it is the ministry itself against which the complaints are usually filed. This makes the ministry a judge in its own case. The CCRGA is also a closed-door body and none of the information regarding its proceedings or decisions is made public. The selection committee of CCRGA comprises members who are either employees of the Union government or are appointed by it. This makes the committee prone to bias.
A hoarding featuring Himanta Biswa Sarma instead of Olympic gold winner Lovlina Borgohain. Photo: Special arrangement
Finally, the practice of publishing photographs of elected representatives on government advertisements. In its 2015 judgment, the court passed an order allowing only the prime minister’s photograph to be published on government advertisements, which was thereafter modified to allow photographs of chief ministers and ministers. After this order, however, we see that the photographs of the PM, CMs and ministers are being very liberally used in government advertisements for personality projection. The malaise has become such that even rations are being distributed in sacks with photos of the PM and vaccine certificates are being issued with the photos of the PM. CMs of states are also similarly misusing this leeway given to them.
The misuse of the ‘power of the purse’ by governments should worry us all. The lack of accountability and a failure to check such misuse is a far bigger problem and are clear signs of democratic backsliding. The reason why government advertisements need to be regulated is not just because thousands of crores of public money is misused every year but also because they greatly impact our electoral democracy. It is now time to revisit the 2015 judgment so that the anomalies are immediately cured.
Prashant Bhushan is a public interest advocate practising at the Supreme Court of India. Anurag is a final year undergrad student of law at the National Law University, Visakhapatnam.