Guideline to regulate content of Government advertisements

The Apex Court observed that the Directorate of Advertising and Visual Publicity guidelines, which are available in the public domain, only deal with the eligibility and empanelment of the newspapers/journals or other media, their rates of payment, and such like matters. Besides, it only specifies that in releasing advertisement to newspapers/journals, the DAVP would not take into account the political affiliation or editorial policies of newspapers/journals. Thus there is no policy or guideline to regulate the content of Government advertisements and to exclude the possibility of any mala fide use or misuse of public funds on advertisements in order to gain political mileage by the political establishment.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 13 OF 2003
Common Cause
.... Petitioner (s)
Versus
Union of India
.... Respondent(s)
WITH
WRIT PETITION (CIVIL) NO. 197 OF 2004
JUDGMENT
P.Sathasivam, CJI.

1)
These writ petitions are filed in public interest, under
Article 32 of the Constitution of India, to throw light on the
enduring issue of use of publicly funded government
advertising campaigns as de facto political advertising
canvass which is violative of Articles 14 and 21 of the
Constitution. With the increasing awareness and emphasis on
transparency in the governance of the country, the public
senses the need to restrain the misuse of public funds for
furthering the political motives. These petitions have been

brought as a class action by certain registered societies viz.,
Common Cause and Centre for Public Interest Litigation
seeking a writ in the nature of mandamus restraining the
Union of India 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 for
laying down binding guidelines which will prevent the abuse
of public funds by such advertising.
2)
The immediate cause of filing these writ petitions in
2003 and 2004 respectively is stated to be the numerous full
page advertisements in the print media and repeated
advertisements in the electronic media by the Central
Government,
State
Governments
and
its
agencies,
instrumentalities including public sector undertakings which
project political personalities and proclaim the achievements
of particular political governments and parties at the
expense of the public exchequer. It is also the assertion of
the petitioners that such advertisements become more
blatant and assumes alarming proportions just before the
announcement of the general elections. Accordingly, it is the

stand of the petitioners that such deliberate misuse of public
funds by the Central Government, State Governments, their
Departments and instrumentalities of the State is destructive
to the rule of law. Further, it allows the parties in power to
patronize publications and media organizations affiliated to
the parties in power and also to get favourable media
coverage by selective dispersal of the advertising bonanza.
3)
It is projected that the use of public funds for
advertising
by
public
authorities
to
project
particular
personalities, parties or governments without any attendant
public interest is mala fide and arbitrary and amounts to
violation of Article 14 of the Constitution of India. It is also
highlighted that use and wastage of public funds in political
motivated advertisements designed to project particular
personality, party or Government by wasting public money is
also in violation of the fundamental rights under Article 21
because of diversion of resources by the governments for
partisan interests. Such violation, therefore, attracts the
remedy under Article 32 for the enforcement of fundamental
rights of the citizens. It is the stand of the petitioners herein

that a writ of mandamus in such a situation, if it is to be
effective, needs to be accompanied by guidelines regulating
the same and we accede to the stand of the petitioners.
4)
On the other hand, Union of India and various States
submitted the necessity of advertisement in the print and
electronic media for dissemination of information in a
democratic setup and further pointed out that since similar
issues have already been raised earlier and adjudicated upon
by this Court as also some High Courts such as Bombay and
Delhi, hence akin grounds should not be entertained in these
petitions. With these averments and in the light of the earlier
decision of this Court in Manzoor Ali Khan & Anr. vs.
U.O.I. & Ors. [Writ Petition (Civil) No. 83 of 2005] decided
on 10.01.2011, the respondents herein prayed for dismissal
of both the writ petitions.
5) Heard Ms. Meera Bhatia, Mr. Prashant Bhushan, learned
counsel for the petitioners and Mr. K. Radhakrishnan, learned
senior counsel for the respondent-Union of India.
We also
heard respective counsel for various States.

Discussion:
6) Let us, at the outset, consider the objection raised by
the respondents
regarding
the
maintainability
of
the
petitions primarily before we would deliberate on the
contentions on the merits.
7)
In the counter affidavit filed on behalf of the Union of
India, it has been stated that the issues raised in the present
petitions are no longer res integra but are in fact res judicata
in the light of earlier decision of this Court in Manzoor Ali
Khan (supra) and other matters decided by the High Court
of Delhi in Umesh Mohan Sethi vs. Union of India & Anr.
[Writ Petition (Civil) No. 2926 of 2012] decided on 12.12.2012
and the Bombay High Court in Laxman Moreshwar
Mahurkar vs. Balkrishna Jagnnath Kinikar and Ors. AIR
1961 Bom 167.
8)
In response to the objection raised, learned counsel for
the petitioners submitted that the principle of constructive
res judicata cannot be made applicable in each and every

public interest litigation and relied on the judgment of this
Court in Rural Litigation and Entitlement Kendra vs.
State of UP (1989) Supp (1) SCC 504, wherein it was held
that:-
“16. ...We may not be taken to have said that for public
interest litigations, procedural laws do not apply. At the
same time it has to be remembered that every technicality
in the procedural law is not available as a defence when a
matter of grave public importance is for consideration
before the Court. Even if it is said that there was a final
order, in a dispute of this type it would be difficult to
entertain the plea of res judicata...”
Thus, in the light of the above, learned counsel for the
petitioners submitted that the decision rendered in Manzoor
Ali Khan (supra) should not prevent this Court from
deciding the issues raised in the present petitions.
9)
Further, it is the stand of the petitioners that a petition
filed in public interest cannot be held to be an adversarial
system of adjudication and the petitioners in their case
merely brought it to the notice of the Court as to how and in
what manner the public interest is being jeopardized by
arbitrary and capricious action of the authorities and,
therefore, the principle of constructive res judicata cannot be

made applicable in each and every public interest litigation,
irrespective of the nature of litigation itself and its impact on
the society and the larger public interest, which is being
served.
Placing reliance on the reasoning rendered in the
aforesaid
verdict
the
objection
raised
herein
stands
overruled.
10) In the light of this, now let us examine the submissions
of the petitioners on merits. The decision of this Court in
Manzoor Ali Khan (supra) was based on two premises,
firstly, that guideline governing the same subject matter
already exists as framed by the Directorate of Advertising
and Visual Publicity (DAVP) as well as Department of
Information in each of the States and secondly, that the
matter is squarely covered against the petitioners in view of
the judgment of the Bombay High Court in the case of
Laxman Moreshwar Mahurkar (supra). It is the stand of
the petitioners that the DAVP guidelines relied upon by this
Court in the Manzoor Ali Khan (supra) and by the
respondents in its counter affidavit in the present case are
irrelevant for the consideration of the issues raised in the

present writ petitions.
Further, it was submitted that the
decision in Laxman Moreshwar Mahurkar (supra) is
clearly distinguishable with the facts and issues raised in the
present public interest litigation.
We shall analyse both
these grounds in detail in the ensuing paragraphs.
11) Primarily,
objection
petitions was that
there
against
admitting
exists substantive
these
writ
guidelines
regulating the Governments’ advertisements issued by the
DAVP and thus the task of this Court will be rendered
infructuous. Mr. K. Radhakrishnan, learned senior counsel for
the Union of India reiterated the stand taken by the
Government in their counter-affidavit filed in the year 2003
as well as in 2013 and brought to our notice the New
Advertisement
Policy
[with
effect
from
02.10.2007]
formulated by the Ministry of Information and Broadcasting,
DAVP, which is the nodal agency of the Government of India
for advertisement by various Ministries and organizations of
Government of India including public sector undertakings
and autonomous bodies. It is seen from the Advertisement
Policy of 2007 that the primary objective of the Government

is to secure the widest possible coverage of the intended
content or message through newspapers and journals of
current affairs as well as Science, Art, Literature, Sports,
Films, Cultural Affairs, etc. The Policy further states that in
releasing advertisements to newspapers/journals, DAVP does
not take into account the political affiliation or editorial
policies of newspapers/journals.
DAVP
would
avoid
However, it states that
releasing
advertisements
to
newspapers/journals, which incite or tend to incite communal
passion,
preach
violence,
offend
the
sovereignty
and
integrity of India or socially accepted norms of public
decency and behaviour.
The Policy dated 02.10.2007
supersedes all earlier orders and the same is the New
Advertisement Policy of the Government of India. The said
Policy contains 27 clauses. A reading of these clauses shows
that the Government advertisements are not intended to
give financial assistance to the newspapers/journals. DAVP
maintains a list of newspapers/journals approved for release
of
advertisements
newspapers/journals.
by
empanelling
acceptable
It further reinforces that due care is

taken to empanel newspapers/journals having readership
from different sections of the society in different parts of the
country.
The Policy also makes it clear that all Central
Ministries/Departments/attached
and
Subordinate
offices/field offices shall route their advertisements, including
display advertisements, through DAVP. It also maintains a
Panel Advisory Committee (PAC) for considering applications
of newspapers/journals for being empanelled for publishing
Government advertisements.
This Committee shall be
headed by the Director General, DAVP and shall include the
Additional
Director
Communication)/Deputy
General
Director
(Media
General
&
(Media
&
Communication) in the Press Information Bureau (PIB), Press
Registrar/Deputy
Press
Registrar
and
Director/Deputy
Secretary/Under Secretary in the Ministry of Information and
Broadcasting dealing with Print Media. The Committee will
also have one representative each from the Association of
big, medium and small newspapers. The recommendations
of the PAC as accepted by the DG, DAVP regarding
empanelment of a newspaper shall be final. It also shows

that all empanelled newspapers/publications will be asked to
enter into a rate contract, which will be valid for a period of
three years.
It further provides that the rate structure for
payment against advertisements released by DAVP will be
worked out as per the recommendations of the Rate
Structure Committee.
The rates depend on certified
circulation of a newspaper.
12) A perusal of various clauses in the Advertisement Policy
of the Government of India dated 02.10.2007 as elaborated
in the aforesaid paragraph shows that all the norms as
mentioned in various clauses are to be adhered to in overall
media strategy of the Ministries and Departments to ensure
maximum coverage at optimum cost. Thus, it is vividly clear
that the DAVP guidelines, which are available in the public
domain, only deal with the eligibility and empanelment of the
newspapers/journals or other media, their rates of payment,
and such like matters. Besides, it only specifies that in
releasing advertisement to newspapers/journals, the DAVP
would not take into account the political affiliation or editorial
policies of newspapers/journals.
Hence, it is evident that

there is no policy or guideline to regulate the content of
Government advertisements and to exclude the possibility of
any
mala
fide
use
or
misuse
of
public
funds
on
advertisements in order to gain political mileage by the
political establishment.
13) As
far as the second
applicability of the decision
objection
in
with
Laxman
regard
to
Moreshwar
Moharkar (supra) is concerned, we have analyzed the
same and are of the cogent view that the said decision of the
Bombay High Court is clearly distinguishable from the facts
and issues raised in the present petitions. The aforesaid case
pertains to applicability or non-applicability of a particular
rule viz., Rule 189 of the Law Officers (Conditions of Service)
Rules and Rules for the Conduct of the Legal Affairs of the
Government whereas the issues raised in these writ petitions
are not pursuant to violation of any specific rule or law rather
a question of public importance has been raised as to
whether the State, which is duty bound to allocate its
resources for the maximum public good, can cavalierly spend
huge sums of public funds in order to derive political

mileage. Thus, the ratio laid down in Laxman Moreshwar
Moharkar (supra) is not relevant for consideration of issues
raised in these writ petitions.
14) Learned senior counsel for the respondent - UOI also
made reference to the decision in Umesh Mohan Sethi
(supra) rendered on 12.12.2012 by the Delhi High Court
which pertained to similar issues as raised in these writ
petitions to substantiate their stand. In Umesh Mohan
Sethi (supra), it was held that if the Government purports
to spend money for a purpose which it characterizes as a
public purpose though in point of fact it is not a public
purpose, the proper place to criticize the action of the
Government would be the legislature or the Appropriation
Committee and Courts are not the forum in which the
Government’s action could be sought to be criticized or
restrained. Besides, the Delhi High Court relied on the
decision of Manzoor Ali Khan (supra) rendered by this
Court and dismissed the petition as misconceived.

15) Learned counsel for the petitioners responded to this
contention by asserting that any government activity has to
satisfy the test of reasonableness and public interest and
while dealing with public funds and property, public interest
is of paramount consideration. In Kasturi Lal Lakshmi
Reddy vs. State of J&K (1980) 4 SCC 1, this Court has held
as under:-
“12. ...Any action taken by the Government with a view to
giving effect to any one or more of the Directive Principles
would ordinarily, subject to any constitutional or legal
inhibitions or other over-riding considerations, qualify for
being regarded as reasonable, while an action which is
inconsistent with or runs counter to a Directive Principle
would incur the reproach of being unreasonable.”

“14. Where any Governmental action fails to satisfy the
test of reasonableness and public interest discussed above
and is found to be wanting in the quality of
reasonableness or lacking in the element of public
interest, it would be liable to be struck down as invalid. It
must follow as a necessary corollary from this
proposition that the Government cannot act in a
manner which would benefit a private party at the
cost, of the State; such an action would be both
unreasonable and contrary to public interest.....”
16) In Shrilekha Vidyarthi vs. State of UP (1991) 1 SCC
212, this Court unequivocally rejected the argument based
on the theory of absolute discretion of the administrative

authorities and immunity of their action from judicial review
and observed:
“It can no longer be doubted at this point of time that
Article 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.”
Similar reasoning was rendered in Ramana Dayaram
Shetty vs. The International Airport Authority of India
(1979) 3 SCR 1014 and in Col. A.S. Sangwan vs. Union of
India (1980) Supp SCC 559. Hence, it was submitted that
judicial review of Government policies is permissible if it does
not satisfy the test of reasonableness and against the public
interest.
17) Although, as asserted by the respondents herein that it
is not the prima facie jurisdiction of this Court to examine
what constitutes as “public purpose” or not however, as per
judicial precedents in Kasturi Lal Lakshmi Reddy (supra)
and other case laws as stated above, this Court is duty bound
to interfere whenever the Government acts in a manner,
which is unreasonable and contrary to public interest. In

succinct, the Government cannot act in a manner, which
would benefit a private party at the cost of the State; such an
action would be both unreasonable and contrary to public
interest.
The
present
writ
petitions
challenge
the
Government advertisements of political nature at the cost of
the public exchequer on the ground that they are in violation
of Articles 14 and 21 of the Constitution. We shall examine
and scrutinize the situation as portrayed by the petitioners as
to whether there is need for specific guidelines to be issued
by this Court to regulate the same.
18) The petitioners further submitted that advertisement
campaigns are undertaken ostensibly to advertise certain
public works and almost all these advertisements contain
photographs
of
the
Ministers
and
important
political
personalities of the Government, which clearly show that
these
advertisement
are
framed
for
the
purpose
of
highlighting the achievements of the incumbent government
and aim to create an impression that those particular
political personalities were directly responsible for providing
public benefits to the people. In succinct, the use of public

office and public funds for personal, political or partisan
purposes is clearly malafide, illegal and not permissible
under the Constitution. Thus, it is the stand of the petitioners
that expenditure on such advertisements is blatant misuse of
public funds by the Central Government, State Governments,
their departments and instrumentalities of the State as it
fosters wastage of scarce funds of the exchequer in
promoting private partisan interests as against public
interest that is destructive of the rule of law.
19) Conversely, the Government of India, in their counter-
affidavit claimed that 60% of the advertisements released by
the Directorate of Advertising and Visual Publicity (DAVP) on
behalf
of
various
Ministries/Departments/Public
Sector
Undertakings (PSUs) of the Central Government relate to
classified or display/classified category such as UPSC/SSC or
recruitment, tender and public notices, etc. The respondents
asserted that government advertisements sometime carry
messages from national leaders, Ministers and dignitaries
accompanied with their photographs.
However, it is their
stand that the purpose of such advertisements is not to give

personal publicity to the leaders or to the political parties
they belong to rather the objective is to let the people know
and have authentic information about the progress of the
programmes/performance of the government they elected
and form informed opinions, which is one of the fundamental
rights of the citizens in our democracy as enshrined in the
Constitution of India. The composition of advertisements
issued by DAVP during the years 2000-01, 2001-02 and
2002-03 in respect of various Ministries/Departments is given
in the form of annexure to the counter-affidavit.
It is the
stand of the Government that the objective of displaying the
advertisements
issued
by
DAVP
on
behalf
of
the
Ministries/Departments of the Government of India is to
create awareness among the people about various policies,
programmes and achievements of the Government and
advertising
is
an
integral
part
of
dissemination
of
information, which is essential in a democracy.
20) The contentions raised by the respondents are based on
clear principle that is bound to be accepted on the face of it.
The stand that Government advertising is a mode for the

Government to disseminate to the members of the public, of
information about a government program, policy or initiative,
or about any public health or safety or other matter(s), that
is funded by or on behalf of a Government agency, is an
outright fact and is a must in our democratic setup. This
Court, in its Constitutional wisdom, understands that it is only
through
such
advertisements
that
the
Government
communicates with its citizens which plays an important role
in efficiently and effectively achieving the goals of public
policy.
21) At the same time, the stand of the petitioners in these
writ petitions is also not entirely misconceived. Since the
primary cause of government advertisement is to use public
funds to inform the public of their rights, obligations, and
entitlements as well as to explain Government policies,
programs, services and initiatives, however, when these
requisites are not fulfilled in a Government advertisement
than the whole purpose would be frustrated. The petitioners
through annexures have brought to the notice of this Court
numerous Government advertisements released by the

Central Government, State Governments, their departments
and instrumentalities of the State which fail to disseminate
any information to the public of their rights and entitlements
in
the
Government
policies
rather
only
glorifies
the
accomplishments of a particular Government. The petitioners
herein have disputed only such advertisements, which they
plead to be wastage of public exchequer for political mileage.
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. It is yet further pleaded that even the
Election Commission of India though had expressed concern
but could not do anything owing to lack of jurisdiction in the
matter.
22) Although this issue of concern may be new to India but
not for other countries. Governments around the world spend
huge amount of money yearly for advertisements in their
local media and most of the countries have faced similar fate
of situation as portrayed in these petitions. The solution to
this crisis was arrived at by framing the Government

advertising guidelines, which set out the policies and
processes that apply to Government advertisement. Few
countries which adopted Government advertising policies are
as under:-
Australia
Australia adopted 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
recommendations
is
agenda.
to
The
depoliticize
focus
public
of
policy
advertising,
prevent conflict of interest, and devolve power in such a way
that no person or group can easily exploit public advertising
funds for individual or political gains.
Canada
Canada also has strict conflict of interest guidelines, which
promote transparency, accountability and separation of
authority to discourage abuse of public advertising funds for
individual, financial or political gains.

Similar policies exist in almost all developed countries to
check the abuse of Government advertisements for private
benefits.
23) There are five principles laid down in Guidelines On
Information and Advertising Campaigns by Australian
Government Departments and Agencies, which will be
applicable to all Government advertising campaigns.
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 must comply with legal requirements
and procurement policies and procedures.
24) In these circumstances, conceding that the existing
DAVP policy/guidelines do not govern the issues raised in
these writ petitions and do not lay down any criteria for the

advertisements to qualify for “public purpose” as opposed to
partisan ends and political mileage, there is a need for
substantive guidelines to be issued by this Court until the
legislature enacts a law in this regard. The petitioners
through their written submissions have proposed guidelines
in this regard, however, on going through the same, we
recognized that the petitioners herein have basically adopted
the proposed guidelines verbatim from other jurisdiction viz.,
Australia. Accordingly, we do not think that it will be
appropriate for this Court to adopt the guidelines of other
country without application of mind and appreciation of
situation in our country.
25) Keeping in mind that the time available to this Court is
limited and the subject matter for which guidelines are to be
framed is sensational and significant, we deem it proper to
constitute a Committee consisting of three members to
undertake the task of suggesting guidelines to this Court
after an intricate study of all the best practices in public
advertisements in different jurisdictions and to submit the
same before this Court preferably within a period of three

months.
The
Committee
will
consist
of
the
following
members:
1) Prof. (Dr.) N.R. Madhava Menon,
  former Director, National Judicial Academy, Bhopal
2) Mr. T.K. Viswanathan,
  former Secretary General, Lok Sabha
3) Mr. Ranjit Kumar, Senior Advocate
In order to coordinate and render assistance to the
Committee, we appoint the Secretary, Ministry of Information
and Broadcasting as Member Secretary.
26) The matter be posted for further direction before this
Court on the expiry of three months from today along with
the suggestions as may be submitted by the Committee
pursuant to this judgment.
......................................CJI.
(P. SATHASIVAM)
...........................................J.
(RANJAN GOGOI)
...........................................J.
(N.V. RAMANA)
NEW DELHI;
APRIL 23, 2014.

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