THE CENTRAL COMMITTEE ON CONTENT REGULATION OF GOVERNMENT ADVERTISING

THE CENTRAL COMMITTEE ON CONTENT REGULATION OF GOVERNMENT ADVERTISING

1. The Supreme Court on May 13, 2015 in Writ Petition (Civil) No. 13 of 2003 (Common Cause vs Union of India), largely based on the recommendation of Prof. (Dr.) N.R. Madhava Menon Committee,   vide para 24 directed the central government to constitute a 3 member body consisting of persons with UNIMPEACHABLE NEUTRALITY AND IMPARTIALITY.  The para 24 of the said judgment reproduced as verbatim reads thus: “Insofar as the recommendation with regard to the appointment of Ombudsman is concerned, we are of the view that for ironing out the creases that are bound to show from time to time in the implementation of the present directions and to oversee such implementation the government should constitute a three member body consisting of persons with unimpeachable neutrality and impartiality and who have excelled in their respective fields. We could have but we refrain from naming the specific persons and leave the said exercise to be performed by the Union Government”.
2. Vide para 23 in the said judgment, the  SC had, amongst other things, barred publication of photos of leaders in government advertisements except those of the President, Prime Minister and the Chief Justice of India.
3. The Supreme Court on 18 March 2016 in R.P. (C) NO. 1879-1881/2015 (State of Karnataka vs Common Cause and ors etc etc) modified its earlier order dated 13 May 2015 and allowed the publication of photos of the Governors and Chief Ministers. Further, in lieu of the photograph of the Prime Minister, the photograph of the Departmental (Cabinet) Minister/Minister In-charge of the concerned Ministry was allowed to be published, if so desired. In the States, similarly, the photograph of the Departmental (Cabinet) Minister/Minister In-charge in lieu of the photograph of the Chief Minister was allowed to be published, if so desired.
4. The Information & Broadcasting Ministry (then headed by Sh. Arun Jaitley Ji) on 6 April 2016 constituted a three-member committee to check violations of the Supreme Court guidelines with regard to content in government advertising in accordance with said SC judgment dated 13 May 2015. The Committee was constituted by I&B Ministry based on the recommendation of the three-member Selection Panel comprising Press Council of India Chairman Justice (retd) C K Prasad, I&B Secretary Sunil Arora and advertising professional PRASOON JOSHI. The Chairman and other members of the said 3 member committee with their brief profile are as follows:

a)      Sh. BB Tandon is the Chairman. He joined as Election commissioner in June 2001. He served as Chief Election Commissioner of India from May 16 2005 till June 29 2006. ( Source: https://en.wikipedia.org/wiki/B._B._Tandon )

b)      Sh. Rajat Sharma is the member. He is Chairman and Editor-in-Chief of “India TV”. He is also the President of the News Broadcasters Association. He is also a prime witness on the behalf of Sh. Arun Jaitley Ji against Arvind Kejrieal (Delhi CM) and others in a criminal defamation case filed by Sh. Arun Jaitley Ji against Arvind Kejriwal (Delhi CM) and others in Patiala House Court, Delhi.

c)      Piyush Pandey is also the member. He is an award-winning co-executive chairman and national creative director of Ogilvy & Mather India and vice-chairman of O&M Asia-Pacific. The Government of India awarded him the civilian honour of the Padma Shri in 2016.  Notable ad campaigns in India designed by Piyush Pandey include:

-          mera desh badal raha hai, aage badh raha hai". BJP government campaign outlining achievement made in first two years by Modi Government.

-          Bharatiya Janata Party campaign for Indian general election, 2014 with PRASOON JOSHI AND ABIR CHATTERJE.

(Source: https://en.wikipedia.org/wiki/Piyush_Pandey )

As per the Terms of Reference, the Committee would address complaints from the general   public of violation on the implementation of the guidelines set out by Hon’ble Supreme Court. The Committee would also take suo motu cognizance of any violation / deviation of the guidelines of Hon’ble Supreme Court and recommend corrective action to the Ministry /Department. The Committee may recommend suitable changes to the Supreme Court guidelines to deal with new circumstances and situations that may arise from time to time, without making major policy changes within the policy direction of Supreme Court. The Committee shall not be bound by any legal rules of evidence and may follow such procedure that appears to it to be fair and proper for swift settlement of grievances. For all decisions of the Committee, the view of majority would prevail. The territorial jurisdiction of the committee would extend to advertisements issued by all – (a) Ministries/Departments of Government of India and Union Territory Administrations, (b) PSUs of Government of India, (c) Local bodies and other autonomous bodies/organizations established under statutes by Government of India/Union Territory Administrations.

5.  The Supreme Court on 28 April 2016 in Contempt Petition (C) No. 485/2015 in W.P.(C) No. 197/2004 (Centre for Public Interest Litigation versus Kewal Kumar Sharma & ors) vide para 6 in its judgment  ordered the State Governments  to also constitute their respective Committees in the spirit of the judgment of  13th May, 2015. It is noteworthy that the Petitioner’s counsel had pleaded inter alia that Supreme Court could consider arming the said Committees with certain additional powers to ensure effective enforcement of the duties cast on it by the judgment dated 13th May, 2015. The Supreme Court vide para 7 held thus “insofar as the arming/empowering the Committee with any further powers is concerned we do not think it necessary to do so at this stage. In paragraph 24 of the judgment of this Court dated 13th May, 2015 it has been clearly laid down that the Committee constituted would be responsible for ironing out the creases that may show from time to time in the implementation of the directions of the Court and also to oversee such implementation. In the event it becomes so necessary and the Committee, for any reasons, is unable to render effective and meaningful service it is always open for an aggrieved party or a conscious citizen to approach this Court once again”.
6. The Government of India, Ministry of Information and Broadcasting addressed a letter dated 23.05.2016 to the Government of NCT of Delhi to take up the matter and appoint a three-member Committee as directed by the Supreme Court. Consequent thereupon, the elected government in Delhi formed a three-member committee with its Chairman and other members as follows: a). Om Thanvi, Chairman [ he is Ex editor of Jansatta in Delhi (1999-2015) and Visiting Professor at the Centre for Media Studies, School of Social Sciences, Jawaharlal Nehru University], b). Shailesh Kumar, Member (Ex editor in chief and CEO News World India), c). Jagjeet Singh Deswal (IPS, retd and Ex private secretary to External Affairs Minister Sushma Swaraj Ji).
7. The High Court of Delhi on 4 August 2016 pronounced judgment on power tussle between Elected Government in Delhi and Central Government – LG.
8.  The letter dated 23.05.2016 of the Ministry of Information and Broadcasting addressed to the Union Territories was withdrawn vide letter dated 09.08.2016 since the direction of the Supreme Court dated 28.04.2016 was not meant for Union Territories and accordingly, it was made clear that the advertisements of Union Territories shall be regulated by the three-member Committee constituted by the Central Government and that the Union Territories are not authorized to constitute three-member bodies of their own.
9. In Writ Petition (C) 6702/2015 (Ajay Maken vs UOI & thers), on August 10, 2016, a Division Bench of Delhi High Court did not consider necessary to enter into the issue as to whether Government of NCT of Delhi may constitute their own committee to regulate the contents of Government advertisements. The Court further held thus “having regard to the fact that a three-member committee has been constituted by the Government of India on 06.04.2016 in compliance with the directions of the Supreme Court and that the petitioner in W.P.(C) No.6702/2015 has already filed a complaint before the said Committee and it has also been represented by the learned counsel appearing for the Union of India that the said complaint would be considered in accordance with the Guidelines approved by the Supreme Court, we consider it appropriate to dispose of all the writ petitions with the following directions: (i)  The complaint dated 10.05.2016 of the petitioner in W.P.(C) No.6702/2015 shall be considered and decided by the three-member Committee constituted by the Government of India on 06.04.2016 in accordance with the Guidelines as expeditiously as possible, preferably within a period of six weeks from today. (ii) The petitioners in other writ petitions are at liberty to file complaints before the Committee in which event the same shall also be considered in terms of the Guidelines.
10. As reported in the Indian Express, Delhi Edition dt 17 September 2016, the said 3 member committee on 16 September 2016 has severely indicted on several counts the Elected Government in Delhi/Aam Aadmi Party and its leaders for gross violation of the said directions of the Hon’ble Supreme Court. The 17 page conclusions of the committee have been sent to the LG of Delhi, Chief Secretary of Delhi, Registrar of Delhi High Court and Congress Leader Sh. Ajay Maken. The alleged violations related to outstation ads, misleading ads, ads for self-glorification, ads against media, ads mentioning AAP by name, ads about incidents in other states. The committee concluded that since the Delhi Government had allegedly violated the guidelines, “the only way it could be remedied is to make the political party, the main beneficiary in the process of violations, to pay for the expenditure incurred by the government”.  

NOTE:-

(A) The contents of the guidelines suggested by the court appointed Committee consisting of [Prof. (Dr.) N.R. Madhava Menon, former Director, National Judicial Academy, Bhopal, Mr. T.K. Viswanathan, former Secretary General, Lok Sabha and Mr. Ranjit Kumar, Senior Advocate]  may be usefully extracted hereinbelow:-

GUIDELINES ON CONTENT REGULATION OF GOVERNMENT ADVERTISING

(1) These Guidelines shall be called the Government Advertisement (Content Regulation) Guidelines 2014.

(2) They shall come into force with effect from......

2. APPLICATION:

(1) These Guidelines shall apply to all Government advertisements other than Classified Advertisements.

(2) These Guidelines shall apply to the content of all Government Advertising till a suitable legislation is enacted by the Government to prevent the misuse of public funds on advertisements to gain political mileage as distinct from legitimate Government messaging.

(3) These Guidelines shall apply to all –

(a) institutions of Government;

(b) public sector undertakings;

(c) local bodies and other autonomous bodies/organizations established under a Statute.

3. DEFINITIONS:

In these Guidelines unless the context otherwise requires:

(a) “Classified Advertisements” include public notices, tenders, recruitment notices, statutory

notifications.

(b) “DAVP Guidelines” means the existing guidelines of the Directorate of Advertising and Visual Publicity of the Ministry of Information and Broadcasting dealing with the eligibility and

empanelment procedures and rates of payment and such other matters;

(c) “Government” means Central Government, State Governments/Union Territory Administrations and also includes local bodies, public sector undertakings and other autonomous

bodies/organisations established under a Statute.

(d) “Government advertising” means any message, conveyed and paid for by the government for

placement in media such as newspapers, television, radio, internet, cinema and such other, media but does not include classified advertisements; and includes both copy (written text/audio) and creatives (visuals/video/multi media) put out in print, electronic, outdoor or digital media.

OBJECTS:

The objects of these Guidelines are:-

(a) to prevent arbitrary use of public funds for advertising by public authorities to project particular personalities, parties or governments without any attendant public interest.

(b) neither to belittle the need nor to deny the authority of the Union and State Governments and its agencies to disseminate information necessary for public to know on the policies and programmes of Government but only to exclude the possibility of any misuse of public funds on

advertisement campaigns in order to gain political mileage by the political establishment;

(c) to address the gap in the existing DAVP Guidelines which only deal with the eligibility and empanelment of newspapers/journals or other media, their rates of payment, and such like matters and not on how to regulate the content of Government advertisements;

(d) to ensure that “all government activities satisfy the test of reasonableness and public interest, particularly while dealing with public funds and property”;

(e) to ensure that government messaging is well co-ordinate, effectively managed in the best democratic traditions and is responsive to the diverse information needs of the public.

5. GOVERNMENT ADVERTISEMENT TO INFORM CITIZENS

Subject to these Guidelines Government may place advertisements or purchase advertising space or time in any medium to inform citizens about their rights and responsibilities, about government policies, programmes, services or initiatives, orabout dangers or risks to public health, safety or the environment.

6. THE FIVE PRINCIPLES OF CONTENT REGULATION:

While placing advertisements or purchasing advertising space in any media, the Government

shall be guided by the following principles, namely:-

(1) Advertising Campaigns to be related to Government responsibilities:

While it is the duty of the Government to provide the public with timely, accurate, clear, objective and complete information about its policies, programmes, services and initiatives

since the public has a right to such information, the content of government advertisements should be relevant to the governments’ constitutional and legal obligations as well as the citizens’ rights and entitlements.

(2) Advertisement materials should be presented in an objective, fair and accessible manner and be designed to meet the objectives of the campaign:

(i) The material shall be presented in a fair and objective manner and shall be capable of fulfilling the intended objectives;

(ii) Government shall exercise due caution while deciding the content, layout, size

and design of the message including the target area and the creative requirement of the intended communication in order to ensure that the maximum reach and impact are achieved in the most cost effective manner;

(iii) Content of advertisement must enable the recipients of the information to distinguish between facts and analysis and where information is presented as a fact, it should be accurate and verifiable;

(iv) Pre-existing policies, products, services and initiatives should not be presented as new unless there has been a substantial change or modification of such policies, products or services;

(v) Content of advertisement should provide information in a manner that accommodates special needs of disadvantaged individuals or groups identified as being within the target audience;

(vi) Multiple formats may be used to ensure equal access;

(vii) Every effort shall be made to pre-test the material in case of large scale campaign with target audiences.

(3) Advertisement materials should be objective and not directed at promoting political interests of ruling party:

(i) Display material must be presented in objective language and be free of political argument or partisan standpoint:

 (ii) Government advertising shall maintain political neutrality and avoid glorification of political personalities and projecting a positive impression of the party in power or a negative impression of parties critical of the government.

(iii) Advertisement materials must not –

(a) Mention the party in government by name;

(b) directly attack the views or actions of others in opposition;

(c) include party political symbol or logo or flag;

(d) aim to influence public support for a political party, candidate for election; or

(e) refer to link to the websites of political parties or politicians.

(iv) Government advertisement materials should avoid photographs of political leaders and 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) Government advertisements shall not be used at patronizing media houses or aimed at receiving favourable reporting for the party or person in power.

(4) Advertisement Campaigns be justified and undertaken in an efficient and cost-effective manner:

(a) Since it is the responsibility of government to safeguard the trust and confidence in the

integrity and impartiality of public services and hence it should be the policy of governments to

use public funds in such a manner as to obtain maximum value for taxpayers’ money;

(b) Advertisement Campaigns must be justified and undertaken in an efficient and cost-effective manner;

(c) The Government shall –

(i) decide and announce beforehand, a list of personalities on whose birth or death anniversaries, advertisements could be released every year and specify which Ministry/Department could release the same;

(ii) avoid the issue of multiple advertisements by different departments and PSUs of the same Government in Commemorative Advertisements and shall issue a single advertisement only;

(d) Though advertising by governments should remain regulated all the time, it is particularly

important to scrupulously follow these principles before and during the elections. As far as possible, during the period prior to elections, only those advertisements required by law (such as public health and safety advisories or job and contract advertisements) alone be released by governments;

(e) Advertisement campaigns should only be need based; and

(f) In case of large volume advertisement campaigns, post-campaign impact assessment is necessary to be included in the planning process itself and shall identify the indicators to measure success when the campaign has ended.

 (5) Government advertising must comply with legal requirements and financial regulations and procedures:

Governments shall ensure that all Advertisements comply with:-

(i) relevant laws regarding privacy, intellectual property rights, election laws and consumer

protection laws apart from laws in respect of broadcasting and media; and

(ii) copyright laws and ownership rights associated with works subject to copyright are

fully respected.

COMPLIANCE AND ENFORCEMENT:

(1) The Government shall appoint an Ombudsman who shall be an eminent expert independent of the Government to receive complaints of violations of Guidelines and to recommend action in accordance with the Guidelines.

(2) Heads of government departments and agencies shall be responsible for ensuring compliance with these Guidelines and shall follow a procedure of certification of compliance before advertisements are released to the media.

(3) As part of the performance audit of the Ministry/Department/Agency –

(a) there shall be separate audit of the compliance of Advertisement Guidelines by the

Ministry/Department/Agency concerned; and

(b) The annual report of such ministry/department/agency shall publish the findings of such audit and the money spent on advertising.

 (4) The regulatory bodies of print and electronic media will be within their powers to impose sanctions against such media groups acting against these Guidelines in seeking or obtaining government advertisements.

8. GENERAL:

(1) These Guidelines shall be in addition to and not in derogation of the existing Guidelines

which are in place under the existing Advertisement Policy of Government.

(2) These Guidelines are equally applicable to State Governments and its agencies. The State

Governments shall undertake amendments to whatever policies they have in this regard and

observe the Guidelines strictly in letter and spirit.

(3) The Ombudsman may recommend suitable changes to the Guidelines to deal with new

circumstances and situations.

(4) The Government shall take necessary steps to initiate necessary legislation on the subject,

given its importance for democracy, human rights and good governance.”

(B) The Hon’ble Supreme Court approved and adopted the recommendations of the Committee in terms of its orders of 13 May 2015, 18 March 2016 and 28 April 2016  except with regard to:

 (a) appointment of an Ombudsman

(b) the recommendation with regard to performance audit by each Ministry.

(c) embargo on advertisements on the eve of the elections.