Few would disagree that the profligate advertising spend of governments inspires nothing but ire in the public. Those cut-outs, and the accompanying pronouncements of thin achievements, rarely if ever serve to inform. Very often, they are mere proclamations whose denouement strengthens the adage that a politician is one who promises to build a bridge where there’s no river.

Therefore, for those campaigning for accountable governance, the Supreme Court’s recent ruling placing restrictions on government advertising is bound to be a vindication.

The judgement was delivered in a public interest litigation which was filed in 2003 by the NGO Common Cause and was directed against successive governments, both in states and at the Centre. Common Cause contended that although the Indian government had an Advertisement Policy, it wasn’t effective enough to counter the manipulation of public opinion by politicised adverts. It asked why public money should be squandered on publicity expenses for political leaders when the only purpose of such adverts should be to inform the public, nothing more?

The government resisted the challenge, contending that there was nothing unethical if Public Sector Undertakings and other functionaries and departments of government took out lavish spreads to keep the population posted about their work. The court appointed a committee under legal academician NR Madhava Menon to study the issue and come up with non-partisan, apolitical guidelines for “content regulation” of government ads.

Salutary principles

Some of the Menon Committee’s recommendations are prudent – that ads need to be regulated so that no government can indulge in favouritism with pliant media houses. The content must be such that the public is able to distinguish between fact and opinion and thus be empowered to shun paid news. The ads need to be cost-effective and must be in “public interest”. And on the eve of elections, the panel advised, a more scrupulous regulation regime should be enforced, with an ombudsman, an eminent expert independent of the government, carrying out this task.

The committee did not flesh out the advice – there were no outlines of the selection process of the ombudsman and no parameters to determine the scope of “public interest” and “fair and objective”.

The court accepted and approved the recommended guidelines almost in entirety. Two significant exceptions were made. One, chief ministers of states were excluded from the list of those permitted to get their photographs printed in advertisements. And second, the Chief Justice of India was added to this list that consists of president and prime minister.

It’s confounding why the Chief Justice of India should have been included among the exceptions. The judiciary isn’t an elected body in India and, moreover, the Chief Justice enjoys no extra judicial power but is only the first among equals of judges on the apex court bench.

Equally perplexing is the manner in which the court put its seal on the Government Advertisement (Content Regulation) Guidelines, 2014. As the nomenclature suggests, the guidelines are centred on the idea of “content regulation” and could lead to a form of censorship. How, for instance, does one segregate facts from opinion? Would glowing adjectives in an advertisement be taken as fact?

Constitutionally undesirable?

While these are important doubts, the more fundamental question that begs to be asked is this: from where does the judiciary draw the power to impose such restrictions?

In the judgement, the court noted that there was a legislative and policy vacuum regarding the definition of the purpose of government advertising and that it wasn’t appropriate for the judiciary to lay down policy measures. But at the same time, contradicting itself, the court held that the policy vacuum, coupled with the Supreme Court’s power to “do complete justice” under Article 142 of the Constitution, enabled it to lay down mandatory “parameters”.

The judges invoked the Directive Principles contained in the Constitution to define the limits of productive government expenditure, and, in consequence, the scope of “public interest” when it comes to the purpose of government advertisements.

However, it is one thing to be guided by Directive Principles and another to make them the rationale for judicial policymaking. Few would disagree that any intrusion into the domains of the executive and legislature is constitutionally undesirable.

It is expected that the court would use its power on the lines of salis populi suprema lex esto (Latin for “the good of the people is the supreme law”) and on many occasions, the judges have done so. But in this case, the judges laid down a mechanism for enforcement of the Directive Principles. This is despite the Constitution imposing a strict prohibition against their enforceability, and numerous rulings and binding precedent upholding such prohibition.

The goal of public interest in this case is undeniable, but one ends up more with an exercise of judicial supremacy than supreme law.