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THE POLITICS OF ADVERTISING

THE HEATED CONTROVERSY over the prohibition of political advertisements on the broadcast media — one that has involved the Election Commission, the Information and Broadcasting Ministry, and private broadcasters — has raised two broad questions. How did the prohibition come into force and on what legal basis? Secondly, is such a ban just and reasonable? The ban has been effected through the invocation of a little-known Rule, drafted under the Cable and Television Networks (Regulation) Act, 1995, that deals generally with advertising of a religious and political nature. Rule 7(3) framed under Section 6 of the Act says that "no advertisement shall be permitted the objects whereof are wholly or mainly of a religious nature; advertisements must not be directed towards any religious or political end." This Rule has suddenly become the basis for banning advertisements by political parties on television. The Election Commission's explanation is that it has not imposed any `ban'; it has only directed the Government to enforce the law of the land.

However, the story is not as simple as that. The I&B Ministry set the stage for the directive, by seeking a clarification on whether this obscure Rule would apply during election season, in the light of a 1999 Andhra Pradesh High Court ruling. That judgment struck down two Election Commission orders prohibiting political advertisements in the private electronic media on the ground that the directives suffered from "the vice of ... unreasonable restriction and discrimination" and were also "violative of the fundamental right of the people to do business i.e., Article 19(1)(g) of the Constitution." Strangely, the Commission, in its reply to the Ministry, stated that Rule 7(3) remained in force since the High Court did not quash it. This was at best a misleading assertion since the Rule did not come up for consideration before the Court, as its judgment in Telugu Desam Party v/s Election Commission of India and Others makes clear. The case related to orders the Election Commission issued in 1999 off its own bat, without any legal basis, and indeed without reference to any law or media policy.

It turns out, on deeper reading, that the author of the present controversy is actually the Bharatiya Janata Party-led Central Government. Having used enormous state resources to run its election-oriented `India Shining' advertising campaign in the media, it seems to have no compunction in calling a halt to all political advertising on private television and FM radio channels. The Election Commission has played into the Centre's hands by rubber-stamping the view that Rule 7(3), which relates to cable TV operations, can somehow be invoked to achieve an objective that was thwarted by judicial intervention. Both the Centre and the Commission seem to have overlooked the vital point that, in the light of the Andhra Pradesh High Court ruling that a ban on political advertising in the broadcast media would violate a fundamental right, the legal validity of Rule 7(3) has no leg to stand on. If political advertisements are permitted in the print media, which also reach tens of millions of voters, what possible logic can there be for excluding them from television? To be fair, the Election Commission's 1999 orders were democratically motivated: only a few major political parties could afford the heavy cost. The issue of unequal access to resources during elections is important and needs to be addressed separately. But the solution does not lie in peremptory bans or in invoking legal provisions that violate the spirit, if not the letter, of judgments by the higher judiciary that, after looking into the basic principles and the larger issues at stake, have clarified the rules of the game.

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