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Report No. 255

Chapter XIV

Restriction on Government Sponsored Advertisements

14.1. Item VII(iv) of the Model Code of Conduct for the Guidance of Political Parties and Candidates proscribes the issuance of advertisements at the cost of public exchequer during election period, for the prospects of the party in power. This is to prevent the Union or State Governments from using public funds to release advertisements purportedly for the information of the public, but with a view to influencing the electorate on the eve of elections.

However, the Model Code of Conduct only comes into force from the date of announcement of the elections and all public (government) spending on advertisements prior to that is completely unregulated.

The operationalisation of the Model Code of Conduct nevertheless, creates a false dichotomy because the actual announcement of a date for the elections is a technical poin.- political parties are well aware of the impending elections long before the ECI officially notifies the dates. The party in power is thus uniquely positioned to issue government sponsored advertisements that highlights its achievements, giving it an undue advantage over other parties and candidates.

14.2. Keeping this in mind, in 2004, the ECI recommended a ban on advertisements "in any manner" of the achievements of the incumbent government for six months prior to the date of expiry of the term of the House to prevent the misuse of public funds. Moreover, in cases of premature dissolution, the ECI's scheme would come into place from the date of dissolution of the House.

An exception was provided for "advertisements/ dissemination of information on poverty alleviation and health related scheme." Apart from this, the ECI recommended that the name or symbol of the political party should not appear in any banners or hoardings in public places depicting the government's achievements. The ECI's proposal found support in the Background Paper on Electoral Reforms prepared by the Legislative Department of the Law Ministry in 2010.546

546. Background paper, supra note 230, at para 6.4

14.3. The Law Commission supports and reiterates the general thrust of the ECI's proposal of regulating and restricting government sponsored advertisements prior to elections to maintain the purity of elections, prevent the use of public money for partisan interests, and ensure that no party or candidate gets an undue advantage over another in the spirit of free and fair elections.

The six-month period for the proposed ban is premised on the ECI's powers under the proviso to sections 14(2) and 15(2) of the RPA to issue a notification for the conduct of the general elections to the Lok Sabha or the State Legislative Assembly within six months prior to the date of expiration of the Lok Sabha or the Assembly. An amendment in the law will reflect the concerns sought to be tackled in the Model Code of Conduct and will ensure regulation in the period prior to the announcement of the elections, thus improving democracy, human rights and good governance.

14.4. Such an amendment is also consonant with the recently released Guidelines on Content Regulation of Government Advertising of a three-member committee comprising Professor N.R. Madhav Menon, former Lok Sabha secretary general T.K. Vishwanathan and present Solicitor General Mr. Ranjit Kumar, and appointed by the Supreme Court to examine the misuse of public funds in government advertisements.

The Committee sought to prevent the "arbitrary use" of the taxpayers' money to project political personalities/governments/parties without attendant public interest, and to promote private interests, by banning or severely restricting government advertisements that glorify political personalities or the ruling party, particularly on the eve of elections.

Thus, it recommended that government advertisements be politically neutral and avoid photographs of political leaders, and only if it is essential then the photographs of the Prime Minister/Chief Minister or President/Governor be used. It also endorsed the ECI's suggestions on the "severe" restrictions on government advertisements six months prior to elections.547 The guidelines are meant to apply till they are superseded by a validly enacted law, and the Law Commission's recommendations will help achieve that.

547. Court Guidelines to govern ads, The Hindu, 7th October 2014,
<http://www.thehindu.com/news/national/court-guidelines-to-govern-govtads/article6476557.ece>; Government ads should not project political leaders, panel tells SC, BUSINESS STANDARD, 8th January 2015,
<http://www.business-standard.com/article/newsians/government-ads-should-not-project-political-leaders-panel-tells-sc-115010801351_1.html>; SC Panel Comes out with Guidelines on Government Advertisements, INDIAN EXPRESS, 6th October 2014,
<http://indianexpress.com/article/india/india-others/sc-panel-comes-out-with-guidelines-ongovt-advertisements/>

14.5. Further, the exception the advertisements regarding poverty alleviation and health related schemes should not carry any names or photographs of the leaders, in line with the Supreme Court-appointed committee's guidelines. It is imperative that any such legislative amendment should apply to all forms of print and electronic media and to banners and hoardings in public places.



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