Government ads

March 02, 2019

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The writer is an author and a lawyer based in Mumbai.
The writer is an author and a lawyer based in Mumbai.

THE politicians who came to power after India’s independence fancied that public money was theirs to use as they wished. This notion persists, and lies at the root of their abuse of power in the grant of government advertisements to newspapers and periodicals. It is not a bounty conferred from their private purses but, in fact, state money — to be expended entirely for a public purpose. India’s constitution sets clear limits on public expenditure. State money cannot be used as an instrument to wreak vengeance on dissenting publications.

A government’s refusal to grant ads to certain papers is widely publicised as if to warn others. The reasons are withheld, but that omission itself suffices to render the action illegal. Such is the mandate of the law.

Kashmir’s benighted government, headed by one Satya Pal Malik, gave no reasons when, since Feb 16, it began withholding advertisements from two English dailies, Greater Kashmir and Kashmir Reader. On Feb 22, the Kashmir Editors Guild (KEG) stated, “[T]he Kashmir media in particular is putting up a huge and costly battle with social media set ups to ensure the truth is cleanly and clearly separated and reported from mass rumour mongering.”

Punishing dissenting newspapers by withholding ads is an abuse of power.

Kashmir has lost at least 13 journalists during the insurgency. An editor present at the KEG meeting revealed, “We are told that aro­und two dozen more newspapers are under the scanner of security agencies. We have ap­­proached the top functionaries of the government but they have expressed helplessness.”

The KEG spokesperson said they were seeking the attention of the Press Council of India (PCI) and the Editors Guild of India “to exercise their legal, ethical and professional mandate to intervene in the issue and ensure that the media in [Kashmir] is not strangulated.” It remains to be seen how — if at all — these bodies react.

Kashmir notoriously receives different treatment; some time ago, government ads were arbitrarily withheld from Kashmir Times. Its founder, Ved Bhasin, was a socialist who upheld the values of a free and truthful press in the worst days of the insurgency. His daughter, Anuradha Bhasin Jamwal, fearlessly keeps up that tradition.

The law on this subject is well settled. In 1954, the first press commission stated: “We hold that the liberty and freedom to place advertisements wherever he likes which a private advertiser enjoys cannot be conceded to government which is a trustee of public funds and, therefore, bound to utilise them, without discrimination, to the best advantage of the public. Government should place advertisements having due regard [for] circulation of the paper and the rates charged by that paper; and readership designed to be reached for the purpose of the particular advertisement. …

“Any other method of placing advertisements … would be an unfair use of public funds [and] render the government open to the charge that the power of placing advertisements is being exercised against papers whose editorial policy is against the government for the time being; or as a patronage to those papers which support it. … The danger involved in the latter is so overwhelming that, from the point of view of maintaining independent journalism, we consider that advertisements should be issued by government only in conformity with the principles enunciated above.”

This applies very much to state undertakings and public corporations. One might go further. Similar conduct by a powerful private corporation, industrial or commercial, should also be visited by strong censure by the PCI, the press and civil society.

The PCI has seen better days. In its heyday, it pointed out that since newspapers are sold for much less than their cost, they “have to depend on advertisement revenue in order to survive, not to speak of making a profit”. Conver­sely, both private business and government are equ­ally dependent on placing ads to promote their products or keep the public informed of their activities, needs and requirements.

The supreme court has ruled that ‘commercial speech’ also falls within the guarantee of free speech. In the Tata Press case, the court said: “The newspaper industry obtains 60/80 per cent of its revenue from advertising. Ads pay a large portion of the costs of supplying the public with newspapers. For a democratic press, the ads ‘subsidy’ is crucial. Without advertising, the resources available for expenditure on the ‘news’ would decline, which may lead to an erosion of quality and quantity. The cost of the ‘news’ to the public would increase, thereby restricting its ‘democratic’ availability.”

It is not only the newspaper but its readers’ right to know that is affected. Three safeguards are necessary: governments must be bound to give reasons for withholding ads; the action must be officially announced; and, in the event of a petition being filed in court, the state must set out its reasons more fully on a sworn affidavit.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, March 2nd, 2019