Thursday, 21 May 2015

Photos Judgement in case of Common Cause and the Centre for Public Interest Litigation (Photos in Advertisement case)

In 2014 in response to the petition filed by the NGO Common Cause and the Centre for Public Interest Litigation(PIL), Supreme Court (SC) delivered  “photos judgment”, ruling that government advertisements may only carry pictures of the president, prime minister and chief justice of India.
The committee was formed in April 2014 on a PIL filed by NGO Common Cause had argued that ruling party leaders and ministers were taking undue advantage at public expenses. --> Menon Panel. It  recommended a complete ban on publishing of photos in the ads and that no ads should be allowed on election eve.

In 2015 came this Photo Judgement where in court held that the objective of a government advertisement can be achieved even without a photograph accompanying it, the apex court said, and left it to the better judgment of the three luminaries whether their pictures should be carried on ads paid for by public funds.

Normally courts would not intrude in public policy domain in pursuance of its democratic wisdom but it  is bound by the Constitution to examine such policies and suggest changes.
Professor Upendra Baxi says that: “Democratic wisdom” is the essence of (what I call) demosprudence, the power of courts and justices to enhance the democratic potential of the Constitution. In demosprudence, justices not only interpret and make law, but they also articulate public polices and act as co-governors of the nation under the Constitution. But demosprudence does not mean judicial despotism.
Professor Bakshi has also asked as to "First, why should the exercise of “democratic wisdom” lead to the appointment of a committee by the Supreme Court? And how is the court to determine its membership? Wouldn’t referring the matter to the Law Commission, the Press Council of India or even the National Human Rights Commission have been a better option? The court has relied on their wisdom in the past; why not now?"
Bihar has said that photos of CM and governor should also be allowed.

The court explicitly says: “Photographs… 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”. But isn't it that everyone is averse to a “personality cult” but no evidence has been made available to prove that result.

Government's latest pronouncement is an order that the expenditure on advertising for the product should not be disproportionate to the actual sales turnover of the product. Are government advertisements “products” to be regulated the same way as alcohol, tobacco and other addictive substances? Is the “personality cult” to be treated on par with substance abuse? Where is the evidence that such a cult is, potentially or actually, being fostered by the present practice of government advertising? If it is, perhaps all photos should be banned and advertisements should only contain narrative prose. This bias against visual culture is altogether misplaced and should be abandoned. 
SC has said that only those undisputed public figures whose contribution to National Cause cannot raise any dispute or debate should be celebrated but does not answer what will happen when someon raises a debate over a national figure.

What about freedom of media? Atleast indirectly if not directly. Pictorial government advertising is a major source of revenue and the constitutional guarantee of freedom of the press includes the right to receive state advertisements. But the photos judgment does not consider the guidelines to be in violation of the freedom of speech and expression, on which only reasonable restrictions may be legislated by Parliament.

In my opinion Professor Bakshi is being over critical. We see so many of unwanted ads in newspapers and televisions all the time. I have always thought that the government should come up with a policy under which it would be compulsory for all media channels to create awareness free of cost just like there is concept of Corporate Social Responsibility (CSR) for companies under which they have to give away a part of their profit towards society. Have your say too in the comment section. 

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