On May 13, 2015, in a decision now known as the “photos judgment”, the Supreme Court ruled that government advertisements may only carry pictures of the president, prime minister and chief justice of India. It was ruling on a PIL filed by the NGOs Common Cause and the Centre for Public Interest Litigation, but not, it is to be hoped, by “five star” activists who will invite government wrath. A three-judge bench including Chief Justice P. Sathasivam, set up on April 23, 2014, partly decided the law in the case.
The 2014 decision is important because it reaffirms the basis of jurisdiction; whenever allegations of arbitrariness or unreasonableness are made, the court has a constitutional duty to examine them. The court may not make public policy in its “democratic wisdom”, but it is bound by the Constitution to examine such policies and suggest changes. Prior decisions do not quite bind the court in “sensational and significant” matters. Maintaining that it is “too late” in the day to resile from this and associated principles of public interest, the court asserts its duty to invigilate any possible violation of such principles.
“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; even the most vigilant public interest must conform to this limit and be open to some interrogation.
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?
Second, the report submitted by the committee is extremely laconic. There is mention of consultation with the affected interests, but there are no details. Indeed, the 2015 judgment holds up only a few of its suggestions, leaving the rest to eventual adoption by the state. The committee is economical with reasoning. So it sculpts the guideline that photographs of only the president, prime minister or chief minister should be used, without explaining why at all.
Third, the photos judgment inexplicably narrows this down to the three dignitaries earlier mentioned. The state of Bihar (it is inexplicable why other states have not made any intervention) argued, to no avail, as it turns out, that the list should also include governors and chief ministers. 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”. Everyone is averse to a “personality cult” but no evidence has been made available to prove that result.
Moreover, the court implicitly regards pictorial depiction of governors, chief ministers, ministers and others as examples of surrogate advertising. The government regulates this: its 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. Besides, if we are serious about curbing the “personality cult”, we should address and attack its root causes, not the outward symptoms.
Fourth, the court insists that no centenary event of a high court should be considered for state advertising. Such ceremonies do not “serve any purpose and must be avoided. Institutions need not be glorified”. Rather, they “must earn glory by contribution and work”. While the principle is unexceptionable in spirit, the actual ban is not. Further, no “contribution and work” can reasonably be expected of persons who are dead. Yet the court only allows commemoration of “the anniversaries of the few acknowledged and undisputed public figures whose contribution to the National Cause cannot raise any dispute or debate”. Suppose a situation arises where certain groups or even political parties raise a debate over a national figure: would the judicial guideline then apply?
Fifth, aside from judicial insistence on norms of equality in the award of government advertisements, there is no discussion about whether the guidelines may affect the freedom of the media. The news and views content of the media may not be directly affected but indirect effects will be felt. 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. Removal or reduction in pictorial content may have a long-term adverse impact on media revenues. This will have a bearing on the freedom of the press, especially small and medium enterprises. 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.
The court is right to conclude that it “is the conjoint responsibility of the three organs of the state, that is, legislative, executive and the judiciary”. But its intentions are hard to decipher. On the one hand, it says that “it is not the intention of the court to attempt to lay down infallible and all comprehensive directions to cover the issue at hand”, that the “gaps, if any” will “be filled up by the executive arm of the government itself”. On the other, it rules that most photos be disallowed and an ombudsperson be appointed “for ironing out the creases… in the implementation of the present directions and to ‘oversee such implementation’”. Should the executive fail to act, the court shall appoint such an ombudsperson. In effect, then, certain guidelines become law, with the promise of more to follow. Is this also a peril to free speech?
The writer is professor emeritus of law, University of Warwick, and former vice chancellor of the Universities of South Gujarat and Delhi.