How central and state governments have been flouting Supreme Court regulations on government advertisements

In late May, Shiv Kumar Banerjee, the sub-divisional magistrate of Chhattisgarh’s Rajpur area, conducted an inspection of a school premises ahead of a public meeting organised by the state government. The meeting was part of the Chhattisgarh government’s Vikas Yatra—according to Chief Minister Raman Singh, a government programme to “provide the benefit of various schemes” across the state. Banerjee reportedly issued directions for the removal of the BJP flags hoisted at the venue, noting that flags of political parties could not be displayed at a government programme, which prompted angry BJP workers to protest and demand disciplinary action against Banerjee. The protest only ended a few hours later, once the workers were allowed to hoist the flags.

While the BJP identifies the yatra as a government programme, and not an electoral campaign, the media reports reflect a truer picture of its nature and purpose—most reports referred to it as the “BJP’s Vikas Yatra,” and the Indian Express even identified it as the party’s “Chhattisgarh poll campaign.” The state government extensively publicised the programme through advertisements campaigns, which have been funded from the public exchequer. In 2015, the Supreme Court had issued directions regulating the content and expenditure on government advertisements—but as illustrated by the Vikas Yatra, both state and central governments have been consistently violated them, without facing any repercussions.

The Supreme Court’s regulations arose from a 2002 petition filed by the non-governmental organisation Common Cause, which claimed that political parties heading state and central governments were spending approximately Rs 2,000 crore on advertisements every year. Over a decade later, based on the recommendations of a court-appointed committee, the Supreme Court laid down guidelines to regulate the content of government advertisements. In accordance with the recommendations of the committee, the court noted that government advertising campaigns “should be related to government responsibilities” and the “materials should be presented in an objective, fair and accessible manner.” It also ruled that the “campaigns must be justified and undertaken in an efficient manner and cost-effective manner, and that they should “comply with legal requirements and financial regulations and procedures.”

The regulations that form the basis of the Supreme Court judgment state that a government advertisement campaign should “not be directed at promoting political interests of a party.” In this regard, the recommendations prohibit any government advertisement from mentioning the ruling party by its name, attacking the views or actions of the opposition parties and including the party symbol or logo in the advertisement. Additionally, the regulations also prohibit the publication of photos of government leaders in advertisements, except the images of the president, the prime minister, the chief justice of India. On appeal from various state and central governments, the court relaxed its guidelines in March 2016 in order to include the photos of chief ministers, governors and union and state ministers of the departments concerned with the advertisements within the excepted list.

But the state government’s advertisements for the Vikas Yatra in Chhattisgarh blatantly flout these guidelines. The publicity campaign for the programme includes full-pageadvertisements by various government departments that carried the BJP logo, as well as photographs of the BJP national president, Amit Shah, the party’s state president, Dharamlal Kaushik, and other local party leaders. None of these leaders hold a position falling within the exceptions carved out by the Supreme Court. Moreover, the chief minister Singh also toured Chhattisgarh in a bus specially assigned for the yatra, which prominently displayed images of the Rashtriya Swayamsevak Sangh ideologue Deendayal Upadhyaya.

The Supreme Court’s judgment directed the central government to constitute a “three member body with unimpeachable neutrality and impartiality” to oversee the implementation of the regulations. In April 2016, the Ministry of Information and Broadcasting constituted a committeecomprising BB Tandon, the former chief election commissioner, Rajat Sharma, the chairperson and editor-in-chief of India TV, and Piyush Pandey, the executive chairperson and creative director of the advertising agency Oligvy & Mather, India and South Asia. The committee’s selection panel was headed by Chandramauli Kumar Prasad, the chairman of the Press Council of India and a former judge of the Supreme Court. The appointments raise questions about the members’ impartiality to say the least—Sharma is known to be close to Narendra Modi, Amit Shah and Arun Jaitley, whereas Pandey was involved in the BJP’s 2014 election campaign.

Two months after it was set up, the Congress leader Ajay Maken filed a complaint with the committee alleging violations of the regulations by the Aam Aadmi Party government in Delhi. In September that year, the committee concluded that the AAP government had committed the violations, which reportedly included “outstation advertisements, false/misleading advertisements, advertisements for self-glorification and to target political opponents, advertisements against media, advertisements mentioning the party in power by name and also advertisements issued on incidents occurring in other States.”

The committee went on to direct the “Govt of NCT of Delhi to get the entire expenditure so incurred … reimbursed to the State exchequer from the Aam Aadmi Party.” Accordingly, in March 2017, the Lieutenant Governor of Delhi Anil Baijal directed the chief secretary to recover Rs 97 crore from the AAP. The party has challenged Bajaj’s order in the Delhi High Court, where the case is still pending. This is the only case that the committee has taken up so far.

The Supreme Court’s 2015 judgment adopting the regulations on advertisement content was based on the recommendations of a committee, led by NR Madhava Menon, the former chairperson of the National Judicial Academy, that the court had constituted in 2014. Among its recommendations, the Menon committee had also proposed a “separate audit of the compliance of Advertisement Guidelines by the Ministry/Department/Agency concerned.” But in the final judgment, the bench led by Ranjan Gogoi stated, “We do not feel the necessity of any such special audit in as much as the machinery available is adequate to ensure due performance as well as accountability and proper utilization of public money.” It is now evident that the court’s confidence in government accountability was misguided.

For instance, this is the third consecutive term of the Raman Singh government, and the chief minister had organised similar yatras before the previous two elections as well. But there has not been any proper auditing of the funds utilised for conducting these yatras. In fact, while the Comptroller and Auditor General has not conducted a specific audit of the Vikas Yatra, in its audit of Chhattisgarh’s state public works and public relations departments in 2013–14, the CAG accused the state government of diverting Rs.9.58 crore, which was meant for developmental work, to conduct the Vikas Yatra.

The order constituting the committee on content regulation of government-funded advertisements empowers it with a jurisdiction over the ministries and departments of the government of India, and union territory administrations. In addition to addressing complaints from the general public, the committee is also entrusted to take “suo motu cognizance of any violation / deviation of the guidelines … and recommend corrective action” to the concerned ministry. The ministry’s order further directs state governments to “appoint their own Three Member Committee on the same basis.” At present, there is no information to suggest that any state government has formed its own committee.

This absence has permitted the continuous use of public money on government advertisements that promote the ruling parties or their leaders, which is an unscrupulously common practice across the country. In March 2018, the Rajasthan chief minister, Vasundhara Raje, announced a Vikas Yatra, which has since been postponed, to tour 200 assembly segments across the state in order to “publicise the work BJP government has undertaken under her leadership.” Ahead of the Karnataka assembly elections this year, the incumbent Congress government reportedly spent Rs 123 crore to publicise its schemes—a nine-time increase from the previous elections. In December 2016, the Andhra Pradesh government under Chief Minister Chandrababu Naidu issued a controversial order to hire 25 journalists on a one-year contract, “to carry out the publicity and other works as Back Office of Hon’ble Chief Minister’s Office.” The journalists were to be paid a monthly remuneration of Rs 51,468 at a total cost of Rs 12,86,700 per month to the exchequer.

In March 2018, the Comptroller and Auditor General submitted an audit report noting that the previous government in Haryana under the Congress had spent over Rs 90 lakh in advertisements glorifying the then chief minister Bhupinder Singh Hooda. The committee took note of television advertisements, such as one titled “Hoodaji Ka Haryana,” which aired in mid 2014, and noted that they attributed “achievements of the state government to his personal endeavours.” In 2016 and 2017, the Kerala chief minister Pinarayi Vijayan faced criticism for issuing full-page advertisements in both years. Even the Communist Party of India, an ally in the ruling Left Democratic Front alliance, criticised the chief minister for wasting public money and attempting to build a “personality cult” around Vijayan.

The central government has incurred significantly higher expenditure from the public exchequer on government advertisements. According to a May report published on the data journalism portal Factly, the Modi-led government has spent over Rs 4,800 crore on advertisement and publicity since 2014. In the past 16 years, the report states, the central government spent Rs 10,000 crore. The report notes that the data has been obtained from the I&B ministry on an RTI application. It shows that the government expenditure on advertisements has witnessed a spike of around 40 percent every successive election year. It also notes that the average annual expenditure incurred on publicity during the first term of the United Progressive Alliance was Rs 312 crore, which increased to Rs 696 crore in its second term. Under the Modi government, incurred an average expenditure of Rs 1,202 crore per year on publicity.

According to a March 2017 parliamentary committee report on the demand for grants of the I&B ministry, the government expenditure appears skewed in favour of election-bound states. For instance, the ministry’s department of field publicity spent Rs 25 crore to advertise central government schemes in Punjab and Uttar Pradesh ahead of the elections early last year. But for the second phase of the advertisement campaign, in the states of Rajasthan, Karnataka and Tamil Nadu, the ministry only incurred an expenditure of Rs 5.30 crore. It appears that the distinction between advertising for awareness and advertising for campaigning has blurred beyond recognition.

An explanation of the circumstances leading to this blurred distinction is the conflict of interest for the government department overseeing the committee on content regulation of government advertisements. When the committee was constituted, the Directorate of Advertising and Visual Publicity, under the I&B ministry, was the nodal agency that undertook all of the central government’s multimedia advertising and publicity. But ironically, according to a ministry’s order constituting the committee, the DAVP was also given the responsibility of setting up a cell to assist the advertisement-regulation committee and disburse the funds allocated to it. If not for the large-scale misuse of public funds involved, it is almost comical that the same department has been assigned such conflicting functions.

In December 2017, the DAVP and two other departments under the ministry—the department of field publicity and the song and drama division—merged to form a new department under the ministry: the Bureau of Outreach and Communication, or BOC. On 18 June, in an email response to a right-to-information application, Amarendra Singh, an under-secretary in the I&B ministry, stated that a cell has been set up under the BOC “to monitor the newspaper advertisements.” Singh added, “The mandate of the cell is to scrutinize the advertisements and report any alleged violation of the Hon’ble Supreme Court’s guidelines to the Committee.” But the under-secretary did not provide any further information about the monitoring process noting that “this Ministry is not involved in the day-to-day affairs of the Committee.” He directed me to address further queries to Satyendra Prakash, the member secretary of the advertisement-regulation committee.

At the time this story was published, I had not received a response from Prakash. I also emailed questions to the members Tandon, Sharma and Pandey regarding the activities of the committee—none of them responded.

While the Supreme Court’s regulations and the Tandon committee only deal with the content of government advertisements, they also raise important concerns about the use of public funds in political campaigns and rallies. In fact, in May 2018, Ajit Anand Degwekar, a Chhattisgarh-based social activist, filed a public interest litigation in the state’s high court alleging that the BJP had “hijacked” the Vikas Yatra. Referring to the programme, Degwekar’s petition states that only the BJP’s “cadres and leaders are allowed to sit on the dais even if they are not holding any Government post or being elected representatives of the area concerned.” It continues, “The entire public meeting area is dominated by BJP flags carrying its election symbol ‘Lotus.’”

The petition refers to a judgment of the Delhi High Court in a case concerning the installation of large elephants by the Bahujan Samaj Party, which was objected to on the grounds that the elephant is an election symbol of the BSP. In July 2016, the high court pronounced its judgment requesting the election commission of India to initiate proceedings for the removal of the statues. Though the judgment imposes no binding obligations on political parties, it is still relevant to pay heed to its observations. The court noted, “There is no bar to a political party propagating itself at its own cost. The issue is of doing so from public places and with use of public funds to which the political party by being in power gets access.”

Following stringent criticism over the spike in the central government’s spending on advertisements, the government’s expenditure dropped by Rs 307.69 crore last year—but it still stood at Rs 955.46 crore. Given the upcoming general elections less than a year away and the dismal record of regulation of government publicity campaigns, it appears likely that the use of public money for political campaigning will continue.