Author: Tripti Malhotra

Symbiosis Law School Vth Year

World Trade Organization

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Tripti Malhotra

The World Trade Organization (WTO) is the most powerful legislative and judicial body in the world. By promoting the free trade agenda of multinational corporations above the interests of local communities, working families, and the environment, the WTO has systematically undermined democracy around the world. Unlike United Nations treaties, the International Labor Organization conventions, or multilateral environmental agreements, WTO rules can be enforced through sanctions. This gives the WTO more power than any other international body. The WTO’s authority even eclipses national governments. The WTO was born out of negotiations, and everything the WTO does is the result of negotiations. The bulk of the WTO’s current work comes from the 1986–94 negotiations called the Uruguay Round and earlier negotiations under the General Agreement on Tariffs and Trade (GATT). The WTO is currently the host to new negotiations, under the ‘Doha Development Agenda’ launched in 2001.

SUCCESS:

In the years 2008 and 2009, the WTO witnessed increased economic uncertainty. Its main function is to ensure the smooth and free flow of global trade. The WTO administers agreements, handles trade disputes and monitors country-specific trade policies while training and cooperating with developing nations and other international organizations [1].

1. The WTO has not only enhanced the value and quantity of trade but has also helped in eradicated trade and non – trade barriers. WTO has also broadened the trade governance scope to trade in investment, services and intellectual property.

2. It has emerged as a greater institution than GATT and expanded the agenda by including developmental policies which further helped in settlement of disputes and improved monitoring by introducing the Trade Policy Review and the World Trade Report as well as increased transparency by removing green room negotiations.

3. WTO also encouraged sustainable trade developments. As trade expands in volume, in the numbers of products traded, and in the numbers of countries and companies trading, there is a greater a chance that disputes will arise. The WTO system helps resolve these disputes peacefully and constructively – in reality, a lot of international trade tension is reduced because countries can turn to organizations, in particular the WTO, to settle their trade disputes. The increasing number of disputes brought to GATT and its successor, the WTO, does not reflect increasing tension in the world, it rather reflects the closer economic ties throughout the world, the GATT/WTO’s expanding membership and the fact that countries have faith in the system to solve their differences.

4. The fact that there is a single set of rules applying to all members greatly simplifies the entire trade regime. The WTO cannot claim to make all countries equal. But it does reduce some inequalities, giving smaller countries more voice, and at the same time freeing the major powers from the complexity of having to negotiate trade agreements with each of their numerous trading partners.[2]

5. WTO members are now reducing the subsidies and the trade barriers which give consumers more choices, and a broader range of qualities to choose from.

6. The system shields governments from narrow interests the GATT-WTO system which evolved in the second half of the 20th Century helps governments take a more balanced view of trade policy. Governments are better placed to defend themselves against lobbying from narrow interest groups by focusing on trade-offs that are made in the interests of everyone in the economy.

7. The World Trade Organization is the single most effective international agency. With the pending inclusion of China, governments that represent 85 percent of the world’s population and about 95 percent of world trade have chosen to bind themselves to the WTO’s rules and dispute settlement procedures.

8.The WTO has been so successful that numerous groups have petitioned to use the WTO to enforce a range of nontrade rules affecting labor, the environment, and competition policy[3].

9.The WTO is the world’s only international organization that supervises 95% of the world’s global trade.[4] The WTO agreements include numerous provisions giving developing and least-developed countries special rights or extra leniency — “special and differential treatment”. Among these are provisions that allow developed countries to treat developing countries more favourably than other WTO members. The General Agreement on Tariffs and Trade (GATT, which deals with trade in goods) has a special section (Part 4) on Trade and Development which includes provisions on the concept of non-reciprocity in trade negotiations between developed and developing countries — when developed countries grant trade concessions to developing countries they should not expect the developing countries to make matching offers in return.

10. Both GATT and the General Agreement on Trade in Services (GATS) allow developing countries some preferential treatment. Other measures concerning developing countries in the WTO agreements include:

i. extra time for developing countries to fulfil their commitments (in many of the WTO agreements).

ii. provisions designed to increase developing countries’ trading opportunities through greater market access (e.g. in textiles, services,technical barriers to trade)

iii. provisions requiring WTO members to safeguard the interests of developing countries when adopting some domestic or international measures (e.g. in anti-dumping, safeguards, technical barriers to trade)

iv. provisions for various means of helping developing countries (e.g. to deal with commitments on animal and plant health standards, technical standards, and in strengthening their domestic telecommunications sectors).

11. The least-developed countries receive extra attention in the WTO. All the WTO agreements recognize that they must benefit from the greatest possible flexibility, and better-off members must make extra efforts to lower import barriers on least-developed countries’ exports. Since the Uruguay Round agreements were signed in 1994, several decisions in favour of least-developed countries have been taken. In 2002, the WTO adopted a work programme for least-developed countries. It contains several broad elements: improved market access; more technical assistance; support for agencies working on the diversification of least-developed countries’ economies; help in following the work of the WTO; and a speedier membership process for least-developed countries negotiating to join the WTO.

12. The phases of development of the special treatment of the third world countries can be studied in the form of four phases. The first phase starts from the forming of the GATT in 1948 till the beginning of the Tokyo Round in 1973. The second phase refers to the Tokyo Round itself, from 1973 to 1979. The third phase dates from the end of the Tokyo Round to the end of the Uruguay Round, that is from 1979 to 1995. The fourth phase starts from the end of the Uruguay Round until the present. The analysis that follows distinguishes five arguments that have been advanced for Special &Differential treatment. The five categories are stated as follows:

i. Special and differential treatment is an acquired political right.

ii. Developing countries ought to enjoy privileged access to the markets of their trading partners, particularly the developed countries.

iii. Developing countries ought to have the right to restrict imports to a greater degree than developed countries.

iv. Developing countries ought to be allowed additional freedom in order to subsidize exports.

v. Developing countries ought to be allowed flexibility in lieu of the application of certain WTO rules, or in order to postpone the application of rules as stated by WTO.

13. Though it is a multilateral institution, the GATT/WTO has adopted a bilateral approach to multilateral bargaining according to which reciprocal negotiations occur on a voluntary basis through time between pairs of countries or among small numbers of countries, with the results of these bilateral negotiations then multilateralized to the full GATT/WTO membership by a non-discrimination requirement that tariffs abide by the most-favored nation (MFN) principle.

14. MFN Treatment: Non- discrimination between countries – the Most Favoured Nation principle is one of the most fundamental principles of the WTO. It requires member states to accord the most favourable tariff and regulatory treatment given to the product of any one member and/or non member at the time of export or import of “like products” to all other WTO members. Under the Most Favoured Nation rule, should WTO member state A agree in negotiation with state B, which needs not to be a WTO member, to reduce the tariff on the same product X to five percent, this same tariff rate must apply to all other WTO members as well. In other words, if a country gives favourable treatment to one country regarding a particular issue, it must handle all members equally regarding the same issue.

MFN and national treatment are designed to secure fair conditions of trade. So too are those on dumping (exporting at below cost to gain market share) and subsidies. The issues are complex, and the rules try to establish what is fair or unfair, and how governments can respond, in particular by charging additional import duties calculated to compensate for damage caused by unfair trade.[5]

15. The WTO agreements, which were the outcome of the 1986-94 Uruguay Round of trade negotiations, provide numerous opportunities for developing countries to make gains. Further liberalization through the Doha Agenda negotiations aims to improve the opportunities. Among the gains are export opportunities. They include:

i. fundamental reforms in agricultural trade.

ii. phasing out quotas on developing countries’ exports of textiles and clothing.

iii. reductions in customs duties on industrial products.

iv. expanding the number of products whose customs duty rates are “bound” under the WTO, making the rates difficult to raise.

v. phasing out bilateral agreements to restrict traded quantities of certain goods — these “grey area” measures (the so-called voluntary export restraints) are not really recognized under GATT-WTO.

In addition, liberalization under the WTO boosts global GDP and stimulates world demand for developing countries’ exports.

CRITIQUE/FAILURES :

1. The foremost failure of WTO is its failure to uphold the principle of democracy. WTO is fundamentally undemocratic. The policies of the WTO impact all aspects of society and the planet, but it is not a democratic, transparent institution. The WTO rules are written by and for corporations with inside access to the negotiations. The lack of transparency is often seen as a problem for democracy. Politicians can negotiate for regulations that would not be possible or accepted in a democratic process in their own nations. “Some countries push for certain regulatory standards in international bodies and then bring those regulations home under the requirement of harmonization and the guise of multilateralism.”[16] This is often referred to as Policy Laundering.

2. WTO is highly biased towards the developed and rich nations, instances of which are as follows:

i. Rich countries are able to maintain high import duties and quotas in certain products, blocking imports from developing countries (e.g. clothing);

ii. The increase in non-tariff barriers such as anti-dumping measures allowed against developing countries;

iii. The maintenance of high protection of agriculture in developed countries while developing ones are pressed to open their markets;

iv. Many developing countries do not have the capacity to follow the negotiations and participate actively in the Uruguay Round; and

v. The TRIPs agreement which limits developing countries from utilizing some technology that originates from abroad in their local systems (including medicines and agricultural products).

3. The WTO Tramples Labor and Human Rights, it’s rules put the “rights” of corporations to profit over human and labor rights. The WTO encourages a ‘race to the bottom’ in wages by pitting workers against each other rather than promoting internationally recognized labor standards. The WTO has also ruled that it is illegal for a government to ban a product based on the way it is produced, such as with child labor. It has also ruled that governments cannot take into account “non commercial values” such as human rights, or the behavior of companies that do business with vicious dictatorships such as Burma when making purchasing decisions.

4. WTO is seeking to privatize essential public services such as education, health care, energy and water. Privatization means the selling off of public assets – such as radio airwaves or schools – to private (usually foreign) corporations, to run for profit rather than the public good. The WTO’s General Agreement on Trade in Services, or GATS, includes a list of about 160 threatened services including elder and child care, sewage, garbage, park maintenance, telecommunications, construction, banking, insurance, transportation, shipping, postal services, and tourism. In some countries, privatization is already occurring. Those least able to pay for vital services – working class communities and communities of color – are the ones who suffer the most.

5. The WTO is also destroying the Environment to a great extent – The organization is being used by corporations to dismantle national environmental protections, which are attacked as “barriers to trade.” The very first WTO panel ruled that a provision of the US Clean Air Act, requiring both domestic and foreign producers alike to produce cleaner gasoline, was illegal. The WTO declared illegal a provision of the Endangered Species Act that requires shrimp sold in the US to be caught with an inexpensive device allowing endangered sea turtles to escape. The WTO is attempting to deregulate industries including logging, fishing, water utilities, and energy distribution, which will lead to further exploitation of these natural resources.

6. The “free trade agreements” threaten to erode many of the advances in global environmental protection, endangering our planet and the natural resources necessary to support life. The North American Free Trade Agreement (NAFTA) and certain agreements of the World Trade Organization (WTO) were written to prioritize rights for corporations over protections for our shared environment. But rather than being repealed, corporate interests are negotiating the expansion of these corporate rights. The U.S.-Dominican Republic-Central American Free Trade Agreement (CAFTA), soon to go before Congress, and the proposed Free Trade Area of the Americas (FTAA), currently in negotiations, are modeled on NAFTA. In addition, negotiations are proceeding within the WTO to expand many of its policies.

These new agreements threaten global biodiversity, would accelerate the spread of genetically engineered (GE) crops, increase natural resource exploitation, further degrade some of the most critical environmental regions on the planet, and erode the public’s ability to protect our planet for future generations.[6]

7. Corporate interests are also negotiating the expansion of the WTO through an agreement on Non-Agricultural Market Access, or NAMA. Primarily involving industrial manufactured goods, NAMA also includes trade in natural resources such as forest products, gems and minerals, and fishing and fish products. NAMA aims to reduce tariffs as well as decreasing or eliminating so-called Non-Tariff Barriers (NTBs), which can include measures for environmental protection and community development.

Eliminating tariffs in natural resources would dramatically increase their exploitation. The World Forum of Fish-harvesters and Fish-workers has warned of the devastation to fish conservation posed by NAMA. Even the U.S. Trade Representative has acknowledged that eliminating tariffs on wood products would dramatically increase logging, exacerbating deforestation in some of the world’s most sensitive forests.

The WTO has already identified a wide range of environmental policy tools as potential ‘barriers to trade’: the certification of sustainably-harvested wood and fish products; restrictions on trade in harmful chemicals; and packaging, marketing and labeling requirements such as organic and Fair Trade labeling.

8. The WTO’s fierce defense of ‘Trade Related Intellectual Property’ rights (TRIPs)—patents, copyrights and trademarks—comes at the expense of health and human lives. WTO has protected for pharmaceutical companies’ ‘right to profit’ against governments seeking to protect their people’s health by providing lifesaving medicines in countries in areas like sub-saharan Africa, where thousands die every day from HIV/AIDS. Developing countries won an important victory in 2001 when they affirmed the right to produce generic drugs (or import them if they lacked production capacity), so that they could provide essential lifesaving medicines to their populations less expensively. Unfortunately, in September 2003, many new conditions were agreed to that will make it more difficult for countries to produce those drugs. Once again, the WTO demonstrates that it favors corporate profit over saving human lives. Trade-Related Aspects of Intellectual Property Rights (TRIPS) rules are more restrictive than liberalizing[7].

9. Free trade is not working for the majority of the world. During the most recent period of rapid growth in global trade and investment (1960 to 1998) inequality worsened both internationally and within countries. WTO rules have hastened these trends by opening up countries to foreign investment and thereby making it easier for production to go where the labor is cheapest and most easily exploited and environmental costs are low [8].

10. In developing countries, as many as four out of every five people make their living from the land. But the leading principle in the WTO’s Agreement on Agriculture is that market forces should control agricultural policies-rather than a national commitment to guarantee food security and maintain decent family farmer incomes. WTO policies have allowed dumping of heavily subsidized industrially produced food into poor countries, undermining local production and increasing hunger.

11. WTO supposedly operates on a consensus basis, with equal decision-making power for all. Involvement of the poor countries is less in the decision making process and they have less bargaining power. Many countries do not even have enough trade personnel to participate in all the negotiations or to even have a permanent representative at the WTO.

12. The WTO’s “Most Favored Nation” provision requires all WTO member countries to treat each other equally and to treat all corporations from these countries equally regardless of their track record. Local policies aimed at rewarding companies who hire local residents, use domestic materials, or adopt environmentally sound practices are essentially illegal under the WTO. Developing countries are prohibited from creating local laws that developed countries once pursued, such as protecting new, domestic industries until they can be internationally competitive.

13. WTO takes too long to arbitrate and settle disputes – it can take over five years from the initial receipt of a complaint from one member to the final panel ruling. Despite the WTO operating as a multilateral organisation, many member countries and trading blocs favour bilateral discussions with partners or competitors. This is because bilateral negotiations can be fully focussed and relatively quick to complete. The result is that many countries prefer to bypass the WTO process, and deal directly with other countries. The failure of the most recent round of WTO negotiations, the Doha round, is widely regarded as evidence of the inherent problems of multilateral discussions.

When the WTO met in 2001, the Trade negotiators were unable meet their goals of expanding the WTO’s reach. In Cancún, Mexico and Hong Kong, China, the WTO met thousands of activists in protest, scoring a major victory for democracy. Developing countries refused to give in to the rich countries’ agenda of WTO expansion – and caused the talks to collapse.

The talks collapsed for a number of reasons. Significantly, while the US and EU failed to agree reductions in agricultural support, many developing countries refused to agree new investment rules which would make it easier for multinationals to invest in their countries. Since the collapse, the USA and EU have returned to bilateral agreements with favoured nations, rather than entering into multilateral agreements. This highlights a major limitation of the WTO in not gaining a complete consensus that multilateral negotiations should be the method of choice of its members.

The failure of the Doha round means that the rich countries of the world still protect themselves from goods produced by the poor nations. By 2005, average agricultural tariffs imposed by the USA and EU were 60%, against average industrial tariffs of only 5%*.

14. For over 30 years, developed countries ignored GATT principles and restricted developing-country exports of textiles and clothing. WTO rules on dumping, safeguards and subsidies have been misused. Liberalization of trade in services has achieved little so far.

15. The slow processes of intergovernmental negotiation, and the need for consensus agreement, mean that the WTO can rarely make rapid or controversial decisions. Nevertheless, interest in the WTO, and in particular in this week’s Hong Kong meeting, remains high. There are several reasons for this:

i. Few people really doubt that trade liberalization can have some impact on the economy, whether that impact is welcome or not.

ii. If the Doha round cannot resolve problems of agricultural subsidies and other measures contrary to the rules, members will resort increasingly to the WTO’s effective dispute-settlement procedures, with results that are more disruptive than negotiated solutions.

iii. In past negotiations, developing countries were generally more onlookers than participants. The Doha Round is the biggest test yet of whether the WTO can focus effectively on their needs.

Whatever the outcome in Hong Kong, concern about the Doha round itself is justified. Failure could be a serious blow to international business confidence and economic prospects for the developing countries. It would also encourage further fragmentation of the trading system.

Because of this failed record, opposition has grown worldwide to the WTO model of globalization which as been driven by a narrow slice of corporate elites to suit their interests. The collapse of the Doha Round WTO expansion talks offers an extraordinary opportunity for a fundamental re-think of the direction of the global economy [9].

16. Growth and the rate of poverty reduction have slowed in most parts of the world since implementation of the WTO’s policies imposed on many developing countries by the International Monetary Fund and World Bank[10].

17. The concept of such special and differential treatment – certain laws applicable to all nations may have an element of exploitation and anti-development. By relaxing such laws when the country under question is a developing country, unfair treatment is doled out to other countries which do not have the privileged tag of being ‘developing’. There also exists a lapse in the system vis-à-vis the criteria that a country must meet in order to be eligible for privileges. As per the current system, a country may decide its own status as either developing or developed. This may lead to paradoxical situations where a country which may not require certain privileges may be put at a discriminatory advantage over other countries by the grant of these privileges. Moreover, if there are laws which have the tendency of being exploitive or harsh, they should be removed as a whole. Furthermore, there needs to be a clear understanding of the distinction between laws which may be negotiable and those which must be binding on all the countries.

18. While the weaknesses in the capacities of developing countries forms the basic reason for the continuous of such differential treatment, such benefits should only be made available to the countries which are ‘low income’ countries and those which may need help to become integrated into the international trade system, or in other words, which are in dire need for trade opportunities.

19. Although the introduction of special provisions for developing countries in the WTO policies would benefit the developing countries without affecting the developed countries too much, the counter argument to this lenient treatment is that the opportunity cost that the implementation of these provisions pose to other nations. Many countries are of the opinion that while developmentally these might be desirable, but the opportunity cost to the trade system is massive as compared to the insignificant contribution some of these least developed and developing countries would make to the international trading system. If one was to subscribe to this view, then it would be of more desirable outcome to introduce these provisions at a later stage when the country is in a position to contribute to the international trade system more significantly in return and in the meantime find better avenues which promise greater returns with regard to the attention, finance and human resources that are required for implementation of the special benefits.

The WTO faces considerable challenges as listed below:

i. Decision-making within the organization.

ii. Streamline reforms related to its dispute settlement system.

iii. Implement development-oriented policies in an effective manner.

iv. Facilitate global trade liberalization in agriculture and textiles.

v. Encourage Non Governmental Organizations or NGOs to become an important part of world trade governance.

vi. Devise ways to increase staff and resources to ensure effective regulation.

 

CONCLUSION:

Currently, the WTO trumps all other international agreements. The WTO must be scaled back so that the human rights, environmental, labor and other multilaterally agreed public interest standards already enshrined in various international treaties can serve as a floor of conduct for corporations seeking the benefits of global trade rules. For instance, the International Labor Organization provides core labor standards; there are more than 200 multilateral environmental treaties covering toxics, air pollution, biodiversity and waste dumping; and the World Health Organization and the U.N. Charter on Human Rights provide many standards on access to medicine and food security.

 

BIBLIOGRAPHY

1. “Rethinking Liberalization and Reforming The WTO”, by Martin Khor.

2. “The WTO’s Doha Negotiations And Impasse: a Development Perspective”, by Martin Khor.

3. “Reshaping the WTO” by Jagdish Bhagwati.

4. ^ Charnovitz, Steve (1999-11-01). “Addressing Environmental and Labor Issues in the World Trade Organization”. Trade and Global Markets: World Trade Organization. Progressive Policy Institute.

5. Kennedy, Kevin C. (2006). “The World Trade Organization: Ultimate Arbiter of International Sanitary and Phytosanitary Standards?”

6.”From Seattle to Hong Kong” by Jagdish Bhagwati.

7. Blackhurst, Richard (August 2000). “Reforming WTO Decision Making: Lessons from Singapore and Seattle”(PDF). Center for Research on Economic Development and Policy Reform (Working Paper No 63)

8. Schott, Jeffrey J.; Watal, Jayashree (March 2000).”Decision-Making in the WTO”.

9. “Transparency, Participation and Legitimacy Of the WTO”. Third World Network. March 1999. Retrieved 2007-03-23.

10. “Reform of the World Trade Organization and International Financial Organizations”. Global Economic Governance.

11. Davey, William J., 2001, Letter of June 3, 1997, to Beverley M. Carl, ‘Qualification as a Developing Country’ in Trade and the Developing World in the 21st Century, Transnational Publishers, New York

 

# Development Gateway available http://topics.developmentgateway.org/trade/rc/BrowseContent.do~source=RCContentUser~folderId=3364 as seen on 26/12/08

# Dhar, B.; Majumdar, A., The India-EC GSP Dispute: The Issues and the Process available at: http://www.ictsd.org/dlogue/2006-01-25/Dhar.pdf as seen on 27/12/08

# Harvard International Review, ‘Not Just Small Change’ in International Trade, Vol. 26 (2) – 2004 available at: http://hir.harvard.edu/articles/1240. as seen on 23/12/08

# Hoekman B., Michalopoulos C., Winters L.A.; Most Favorable and Differential Treatment of Developing Countries: Towards A New Approach in WTO, World Bank Policy Research Paper 3107 available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=636470 as seen on 29/12/08

# International Institute for Sustainable Development, 2003 ‘Special and Differential Treatment’ at http://www.iisd.org/pdf/2003/investment_sdc_may_2003_2.pdf as seen on 29/12/08

# Keck, Alexander and Low, Patrick,Special and Differential Treatment in the WTO: Why, When and How?(January 2004). WTO Staff Working Paper No. ERSD-2004-03. Available at SSRN: http://ssrn.com/abstract=901629

# Lipsey, R.G. & Chrystal K.A., 1999, ‘Growth in Developing Countries’ in ‘Principles of Economics’ 9th Ed., Oxford University Press, New York

# Pratap, Ravindra, WTO AND TARIFF PREFERENCES,VOL.39, Pg-1788

# Priyadarshani,Shishir,2002. Reforming trade in agriculture:a developing country perspective. Trade,environment, and development project 2.

# Ricardo Melendez-Ortiz , sustainable development and environment policy objectives:a case for updating special and differential treatment at WTO.Joint group on trade and competition, The role of “ special and differential treatment” at the trade,competition and development interface, at http://www.oecd.org/dataoecd/49/37/2072318.pdf. as seen on 27/12/08

# SPS AGREEMENT TRAINING MODULE: CHAPTER 6 http://www.wto.int/english/tratop_e/sps_e/sps_agreement_cbt_e/c6s3p1_e.htm AS SEEN ON 22/12/08

# The World Trade Organization, Understanding the WTO: Developing Countries available at:http://www.wto.org/english/thewto_e/whatis_e/tif_e/dev1_e.htm as seen on 16/12/08

 

—

[1] The Battle Against the World Trade Organization and Corporate Rule, By Kevin Danaher

[2] “Rethinking Liberalization And Reforming The WTO”, BY Martin Khor.

[3] Building On The WTO’S Success, by William A. Niskanen, Cato Journal, Vol. 19, No. 3 (Winter 2000)

[4] World Trade Organisation (WTO), by: EconomyWatch Date: 30 June 2010

[5] http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm

[6] http://www.globalexchange.org/resources/wto/environment

[7] Blackhurst, Richard (August 2000). “Reforming WTO Decision Making: Lessons from Singapore and Seattle”(PDF). Center for Research on Economic Development and Policy Reform (Working Paper No 63)

[8] The Battle Against the World Trade Organization and Corporate Rule, By Kevin Danaher

[9] Why the WTO Doha Round Talks Have Collapsed and a Path Forward, by Lori Wallach and Deborah James, Monday, August 14, 2006.

[10] Schott, Jeffrey J.; Watal, Jayashree (March 2000) “Decision-Making in the WTO”.

 

Theories of Press

Posted on | by Tripti Malhotra | Leave a Comment on Theories of Press

Tripti Malhotra

Mass media does not operate in a vacuum, the press always takes on the form and coloration of the social and political structures within which it operates. Normative theories were first proposed by Fred Siebert, Theodore Peterson and Wilbur Schramm in their book called “Four Theories of the Press”. At first the word “Normative Theory” was pronounced in USA during the height of ‘cold war’ with communism and soviet. Often it called as western theories of mass media.

A Normative theory describes an ideal way for a media system to be controlled and operated by the government, authority, leader and public. These theories are basically different from other communication theories because normative theories of press are not providing any scientific explanations or prediction.  At the same these “four theories of the press” came from many sources rather than a single source.  Sometimes media practitioners, social critics and academics also involved to develop these normative theories.Normative theories are more focused in the relationship between Press and the Government than press and the audience. These theories are more concern about the ownership of the media and who controls the press or media in the country.

By contrast, normative statements affirm how things should or ought to be, how tovalue them, which things are good or bad. Normative theories are divided into the following categories.

1.       AUTHORITARIAN:

Long before the democratic societies could think of matters pertaining to freedom of speech, there existed a thought that the emergence of media should not challenge the writ of the government which were more in dictatorial form and less they looked like democracies. The media was forced to remain under state control. It had following features which, in non democrati governments still rule on media:

 

a)      Direct governmental control of the media. Typical to pre-democratic societies, where the government consists of very small ruling-class.

b)      No printing that could undermine the established authority or offense to existing political set up.

c)       The government may punish anyone who questions the state’s ideology and the Media professionals are not allowed to have any independence within the media organization.

d)      Registration of the media by the state.

 

This theory developed in the 16th and 17th centuries and was mainly based on absolute power of the monarchy (truth). It was essential that the Press supports monarchy and couldn’t criticise it. This approach was designed to protect the established social order, setting clear limits to media freedom and ensure that it is not the media which must talk about people and their problems in any manner.According to this theory, mass media, though not under the direct control of the State, had to follow its bidding.

This Theory Envisages:

i.            The government consists of a very limited and small ruling-class and media are not allowed to print or broadcast anything which could undermine the established authority of the government.

ii.            Any offense to the existing political values should be avoided and the government may punish anyone who questions the state’s ideology.

iii.            The government is infallible and the media professionals are therefore not allowed to have any independence within the media organization.

iv.            Foreign media are subordinate to the established authority, in that all imported media products are controlled by the state.

Under an Authoritarian approach in Western Europe, freedom of thought was jealously guarded by a few people (ruling classes), who were concerned with the emergence of a new middle class and were worried about the effects of printed matter on their thought process. Steps were taken to control the freedom of expression. The result was advocacy of complete dictatorship. The theory promoted zealous obedience to a hierarchical superior and reliance on threat and punishment to those who did not follow the censorship rules or did not respect authority. Censorship of the press was justified on the ground that the State always took precedence over the individual’s right to freedom of expression.

This theory stemmed from the authoritarian philosophy of Plato (407 – 327 B.C), who thought that the State was safe only in the hands of a few wise men. Thomas Hobbes (1588 – 1679), a British academician, argued that the power to maintain order was sovereign and individual objections were to be ignored. Engel, a German thinker further reinforced the theory by stating that freedom came into its supreme right only under Authoritarianism.The world has been witness to authoritarian means of control over media by both dictatorial and democratic governments.

This theory essentially applies to authoritarian societies, but can surface in less authoritarian societies(particularly in times of war, terrorism). It depends on the medium/ media of press subject to a greater control in some countries. The Propaganda model of Chomsky and Herman alleges systemic biases in the mass media and seeks to explain them in terms of structural economic causes. There are certain assumptions attached to the Authoritarian approach, which are as follows:

a)      Press should do nothing to under mine vested power and interests;

b)      Press should be subordinate to vested power and authority;

c)       Press should avoid acting in contravention of prevailing moral and political values;

d)      Censorship justified in the application of these principles;

e)      Criminalisation of editorial attacks on vested power, deviations from official policy, violation of moral codes.

f)        Media is an instrument/ mouthpiece to publicise and propagandise government ideology and actions.

g)      Absolute power of state versus subservience of the individual ᾶ press.

These assumptions in turn help us in understanding the basic premise of the theory. It explains the principles on which this theory is based and the approach which the authoritarian society used to follow. The biggest examples of this theory are :Fascist regimes, some African countries, communist countries, Aspects of apartheid etc.

 

LIBERTARIAN THEORY:

This theory is just in contrast to the authoritarian approach to media. The founding fathers of this theory (Milton, Locke, Mills) propounded that Press informs, entertains, sells and helps in discovering the truth. It is a free marketplace of ideas where anyone can publish hos/ her views and expressions but cannot defame or be obscene. There shall be minimum checks and balances by the government. The libertarians had a very modern approach which was quintessential to serve the purposes of the modern society based on rise of democracy, religious freedom, expansion of economic freedom, philosophical climate of the enlightenment, undermined authoritarianism ᾶ emphasison personal freedom and democracy. The reason behind the said philosophy was that people are rational and can distinguish between truth and falsehood, and between good and evil and therefore, be allowed to express their views and expressions.

Here media enjoys an absolute freedom of expression. Its prominent features are as follows:

a)      Competitive exposure of alternative viewpoints.

b)      Attacks on the government’s policies are accepted and even encouraged: the media as a watch dog.

c)       Journalists and media professionals ought to have full autonomy within the media organization.

d)      There is no explicit connection between the government and the media.

e)      The press is free from censorship

f)        It is accountable to the law for any consequences of its activities that infringe other individuals’ rights or the legitimate claims of the society.

g)      In rebelling against authoritarian theory early libertarians argued that there should be no laws governing media operations. Free press means that all forms of media must be totally unregulated.

The Early Libertarians argued that if individuals could be freed from arbitrary limits on communication imposed by church and state, they would “naturally” follow the dictates of their conscience, seek truth, engage in public debate, and ultimately create a better life for themselves and others. They believed strongly in the power of unrestricted public debate and discussion to create more natural way of structuring society. In AEROPAGETICA, a powerful libertarian published in 1644 by ,John Milton asserted that:”In a fair debate good and truthful arguments will always win out over lies and deceit. If this is true it followed, then a new and better social order could be forged using public debate.”

These libertarian principles were also adopted in the “Bill of Rights”. (First 10 amendments to U.S.constitution). It asserted that all individuals have natural rights no government, community, or group can unduly infringe upon or take away. The ability to exercise dissent, to band together with others to resist laws that people find to be wrong, to print or broadcast ideas, opinions and beliefs- all of these rights are proclaimed as central to democratic self government.

Unfortunately, most early libertarians had a unrealistic view of how long it would take to find the”truth” and establish an ideal social order. In the 18th century it became clear that “truth” couldn’t be quickly or easily established, some libertarians became discouraged. They drifted between libertarian and authoritarian views. But despite the priority given to communication freedom, one sees number of restrictions on communication, accepted by media practitioners and media consumers.Examples can be : Libel -laws to check the publication of information that will damage reputations; Laws against offensive language, pornography, information that would interfere with a defendant’s right to a fair trial etc.Whenever new media technologies are invented, it is necessary to decide how they should be regulated.

The debate over communication freedom never ends, sometimes the balance shifts toward expanding freedom and other times, freedom is curtailed.The question is why it is necessary to place limits on communication freedom, What happens when groups attempt to stir up hatred and resentment against racial or ethnic minorities, Should media practitioners be allowed to invade our homes, publish erroneous information or deceive public with false advertising, Do media professionals have the right to produce and distribute any thing that will earn profits, or should some limits be placed on them. The protection of dignity, reputation, property, privacy, moral development of individuals, groups,minorities, evens the security of the state no infringement accepted from media.Such an extensive freedom is also a problem as all people have the right to speak and receive information freely, but no one takes responsibility of the wrong doings. The ethics in multicultural or pluralistic societies vary from place to place; hence there is always complaint against the media of each other’s society This movement is based on the right of an individual, and advocates absence of restraint. The basis of this theory dates back to 17th century England when the printing press made it possible to print several copies of a book or pamphlet at cheap rates. The State was thought of as a major source of interference on the rights of an individual and his property. Libertarians regarded taxation as institutional theft. Popular will(voxpopuli) was granted precedence over the power of State.

Advocates of this theory were Lao Tzu, an early 16th century philosopher, John Locke of Great Britain in the17th century, John Milton and John Stuart Mill. Milton referred to a self righting process if free expression is permitted “let truth and falsehood grapple.” In 1789, the French, in their Declaration Of The Rights Of Man, wrote “Every citizen may speak, write and publish freely.” Out of such doctrines came the idea of a “free marketplace of ideas.” George Orwell defined libertarianism as “allowing people to say things you do not want to hear”. Libertarians argued that the press should be seen as the Fourth Estate reflecting public opinion.What the theory offers, in sum, is power without social responsibility.

Classical liberal perspective envisages the following:

a)      Free market as foundation of free media;

b)      Freedom to publish without prior restriction ᾶ independence from government;

c)       Public has access to wide diversity of opinion (only limitation on freedom to publish is public willingness to pay);

d)      Market-based diversity promotes public rationality ᾶ free marketplace of ideas and information as a self-righting mechanism, minimises bias and exposes weak arguments and evidence.

Another strand in liberal tradition presents Media as representative agency or as a watch dog protecting the public (individuals rights),overseeing the state. Wherein the Watchdog reveals and abuses in the exercise of state authority. This role overrides all other functions of the media and dictates the form in which the media should be organised, i.e. the free market.As newspapers gradually lost their party affiliations, journalists worked to establish their independence as searchers after objective truth. Independence from government control and influence ᾶ if media is subject to public regulation it will lose its bite as a watch dog.

Press is source of information and plat form for expression of a range of divergen to pinions; enables people to monitor government and form ideas about policy.But, society seen as an aggregation of individualsᾶ media. As representative role conceived primarily in terms of articulating public opinion, which is the sum of individual opinion. How should media relate to representative structures as distinct from individuals ᾶrole of media in mediating class and other conflict in society.

However, Freedom of press can be abused. Absolute freedom is anarchy. Abolition of censorship; but, also the introduction of press laws designed to protect individual rights (protection of reputation, privacy, moral development of individuals or groups, security of the state)ᾶ could override the right of the press.

Lastly, this theory also entails certain ASSUMPTIONS that help in understanding the basic premise of this theory:

a)      Press should be free from any external censorship;

b)      Publication and distribution should be accessible to any individual or group with a permit or license;

c)       Attacks on governments or parties should not be punishable;

d)      No coercion to publish anything;

e)      Freedom of access to information.

f)        libertarian view rests on the idea that the individual should be free to publish whatever he or she likes attacks on the government’s policies are fully accepted and even encouraged

g)      no restrictions on import or export of media messages across the national frontiers

h)      journalists and media professionals have full autonomy within the media organization.


3.      SOVIET COMMUNISM

With the revolution in Russia in 1917, and practice of Marxism, there appeared a very different approach to deal with media. The media was tied to overall communist ideas and defined in a very different way. The theory to control media possessed following features:

 

a)      Closely tied to the communist ideology.

b)      The media is collective agitator, propagandist and educator in the building of communism.

c)       No private ownership of the media.

d)      The government is superior to the media institutions.

e)      The media is supposed to be serious.

f)        The soviet theory does not favor free expression, but proposes a positive role for the media, the society andthe world.

g)      Press contributes to success of the state.

h)      Only legal party members can publish and no one can criticize party.

i)        Government has “influence” over the press.

j)        closely tied to a specific ideology—the communist

k)      media organizations in this system are not intended to be privately owned and are to serve the interests of the working class

l)        both the soviet and the authoritarian acknowledge the government as superior to the media institutions.

m)    The mass media in the Soviet model are expected to be self-regulatory with regard to the content of their messages

 

The Soviet theory differs from the authoritarian theory in that the media organizations have a certain responsibility to meet the wishes of their audience.This theory is derived from the ideologies of Marx and Engel that “the ideas of the ruling classes are the ruling ideas”. It was thought that the entire mass media was saturated with bourgeois ideology. Lenin thought of private ownership as being incompatible with freedom of press and that modern technological means of information must be controlled for enjoying effective freedom of press.The theory advocated that the sole purpose of mass media was to educate the great masses of workers and not to give out information. The public was encouraged to give feedback as it was the only way the media would be able to cater to its interests.

4.      SOCIAL RESPONSIBILITY THEORY:


This theory keeps certain areas free for the Press but at the same time puts lot of responsibility on media. As discussed in the beginning that the media is not just seen as an enterprise like others in the business sector of any society, but due to its unique nature, society expects a particular role which media must play in getting rid of social evils, educating people, criticizing government policies and exposing other wrong doings in a society. The sense of responsibility has been emphasized more in this theory as compared to any other. The basic premise of the theory is as follows:

a)      Media has certain obligations to society.

b)      It must show truth, accuracy, objectivity, and balance.

c)       The media should be free but self-regulated (codes of conduct, and ethics)

d)      The media according to this theory is pluralistic: diversity of society, various points of view, forum for ideas.

e)      The media ownership is a public trust. Therefore, a journalist is accountable to his audience / readers.

 

MCQUAIL has further enlisted certain other premises of this theory, which are as follows/ THEORY IN POINTS:

a)      Media have important function to fulfil in society(support democratic political principles);

b)      Media are under obligation to fulfil their social functions(transmission of information and creation of a forum for different viewpoints);

c)       Independence of media emphasised in relation to their responsibility towards society;

d)      Media should meet certain standards.

e)      Media should accept responsibilities towards society;

f)        Media should fulfil responsibilities by setting professional standards with regards to the supply of information and the truth, accuracy,objectivity and balance of their reporting;

g)      Media should apply self-regulation;

h)      Media should avoid publicising information that can lead to crime, violence or social disruption,as well as information that can offend ethnic or religious minorities;

i)        Media collectively should represent all social groups and reflect the diversity of society by giving people access to a variety of view point sand opportunity to react to them.Society is entitled to high standards and intervention justifiable if the media fail to meet these standards.

j)        Everyone should have access to press (letters, opinions)

 

According to the theory media must be controlled by community opinion and ethics. Media cannot violate people’s rights. Press can be free and be comprehensive and objective but at the same time must be socially responsible. The social responsibility theory is an outgrowth of the libertarian theory. However, social responsibility goes beyond “objective” reporting to “interpretive” reporting.media has certain obligations to society which it must fulfil in all circumstances:

  • Informativeness
  • Truth
  • Accuracy
  • Objectivity
  • Balance

 

Media as a whole is pluralized, indicating “a reflection of the diversity of society as well as access to various points of view”. A truthful, complete account of the news is not necessarily enough today, notes the Commission on the Freedom of the Press: “It is no longer enough to report the fact truthfully. It is now necessary to report the truth about the fact.” Today’s complex world often necessitates analysis, explanation, and interpretation. The emerging theory does not deny the rationality of man, although it puts far less confidence in it than the libertarian theory, but it does seem to deny that man is innately motivated to search for truth and to accept it as his guide. Under the social responsibility theory, man is viewed not so much irrational as lethargic. He is capable of using his reason but he is loath to do so.If man is to remain free, he must live by reason instead of passively accepting what he sees, hears, and feels. Therefore, the more alert elements of the community must goad him into the exercise of his reason. Without such goading man is not likely to be moved to seek truth. The languor which keeps him from using his gift of reason extends to all public discussion. Man’s aim is not to find truth but to satisfy his immediate needs and desires.

It is the press, therefore, that must be the “more alert element” and keep the public informed, for an informed populace is the cornerstone of democracy.Today’s large media conglomerates, however, may not function naturally as a public forum, where all ideas are shared and available. “The owners and managers of the press determine which persons, which facts, which versions of these facts, shall reach the public,” writes the Commission.In this same light, Siebert, Peterson and Schramm warn:

“…the power and near monopoly position of the media impose on them an obligation to be socially responsible, to see that all sides are fairly presented and that the public has enough information to decide; and that if the media do not take on themselves such responsibility it may be necessary for some other agency of the public to enforce it.”

The Canons of Journalism, adopted by the American Society of Newspaper Editors addresses these same obligations when it calls on newspapers to practice responsibility to the general welfare, sincerity, truthfulness, impartiality, fair play, decency, and respect for the individual’s privacy.Siebert, Peterson and Schramm also note that “freedom of expression under the social responsibility theory is not an absolute right, as under pure libertarian theory….One’s right to free expression must be balanced against the private rights of others and against vital social interests.”

Western media are controlled by capitalist economic interests (prevent them from publishing the Marxist truth).Communist press is equivalent to no profit motive. But it does not mean that it did not foreground special and elite interests in Soviet society. This theory at all times upholds the principle of social responsibility and works in the interest of public at large. It may therefore be understood that:

 

a)      Media should act in the interests of and be controlled by the working class;

b)      Media should not be under private control;

c)       Media should perform positive functions for society, such as socialisation (to make people conform to desirable norms), education, the supply of information, motivation and mobilisation of the masses;

d)      Media should respond to the desire and needs of their recipients;

e)      Society has right to use censorship and other legal measures to prevent and punish antisocial publication;

f)        Media should reflect complete and objective view of world and society in terms of Marxist-Leninist principles;

g)      Media should support communist movements everywhere.

 

A brief critique of libertarian and social responsibility theories/ A political critique:

a)      Journalism in capitalist societies functions in the interests not of society as a whole,but of dominant groups and classes.

b)      Concepts like free press, democracy, the public interest, objectivity, neutrality seen as myths.

c)       All research processes ᾶ including journalism ᾶ seen as value-laden and methodological decisions political.

d)      There is Concentration of ownership and control of media (lack of diversity), and the declining vitality of publicly funded media/cultural institutions like public broadcasters (due to privatisation).

 

There are a number of other problems with modern media:

  • Lack of democracy within media organisations;
  • Governmental secrecy;
  • In stitutionalised racist and patriarchal codes;
  • Commodification of culture
  • The democratic process requires the participation of ordinary citizens as much as those who are prominent.
  • Bias against independent thinking.
  • Journalists have to remain impartial and value neutral ᾶ therefore no longer the need nor the opportunity to develop a critical perspective from which to assess the events, the issues, the personalities he or she is assigned to cover.
  • Bias against the journalist: Objectivity in journalism effectively erodes the very foundation on which rests a responsible press.

 

It is utmost essential to understand that news is never a mere recording or reporting of the world but a synthetic, value-laden account which carries within it dominant as sumptionsand ideas of the society within which it is produced.Media practices do not reflect a genuine public spiritedness but rather a concern to boost sales or improve ratings. The increasing media emphasis on infotainment has accompanied the depoliticising of civil society.For example, it likely would not be socially responsible to report how the terrorist, using some new method, evaded security measures and smuggled a bomb onto a commercial airline.

 

Idealism and Press Theories:

Many of these theories have reflected Western idealism and championship of a Western perspective of democracy. The work of Picard (1985) is no exception. Here viewed previous categories of state–press relations and added a further concept,that of the democratic socialist theory of the press. This theory argued that the press’s purposes are to provide an avenue for expression of public views and to fuel the political and social debates necessary for the continued development of democratic governance. Under the umbrella of the theory, the role of the state is to ensure the ability of citizens to use the press and to preserve and promote media plurality.

 

HATCHEN’S addition:

Hachten also proposed five theories or concepts of the press emphasizing politics and economics: authoritarian, Western, Communist, revolutionary, and developmental or third world. His conception of authoritarianism was similar to that of Siebert and Lowenstein. However, his Western concept encompassed both the libertarian and social-responsibility models with its defining characteristic being that it is relatively free of arbitrary government controls. Under the Communist concept, media are tools that serve as implements of revelation (by revealing purposes and goals of party leaders) as well as instruments of unity and consensus. The main difference between authoritarian and Communist systems is ownership. In authoritarian systems, press can be privately owned as opposed to state ownership in Communist systems. Hachten defined the revolutionary concept as being illegal and subversive mass communication utilizing the press. Finally, the developmental model was seen to have arisen out of a combination of Communist ideas, anti-Americanism, and social-responsibility ideals.

Hachten saw the defining characteristic of this concept as being the idea that individual rights must be subordinated to the larger goals of nation-building and thus must support authority. This concept is also seen to be an egative response to the Western model. However, his classification never yields a clear distinction of the press systems, for the analytical dimensions are defined both under the system of the state (authoritarian, Western, Communist)and the functions of the media (revolutionary and developmental).

 

CRITICISM :

Work on categorization of national press systems in the last 40 years has been grounded in the well-known Four Theories of the Press. Whereas this approach has been strongly criticized by international scholars for its idealism and its poverty of empiricism, it is still widely taught in introductory journalism courses across the country, and few theorists have engaged in grounding the theory with data in international settings. Although journalism is contextualized and constrained by press structure and state policies, it is also a relatively autonomous cultural production of journalists negotiating between their professionalism and state control.

The world order has changed greatly in the last decade. Many of the old frameworks—including those of the media such as the Four Theories of the Press (Four Theories)—are obsolete and inapplicable for contemporary analysis. The new order has already annulled their explanatory power. We need new ideas to account for the development of our internationalized and diverse forms of media. The theories are hardly applicable to the current scenario.

 

CONCLUSION

Not confined to the extent of theories, the media always faces (and is open to) criticism and social scientists always keep this debate open as how best media could be used to improve functioning of civil society and promotion of democratic sense and practices. In their view if people’s knowledge, understandings, capabilities, and actions are manufactured, its imultaneously follows that they can be developed, improved, and individualized in proper (ideal-democratic) circumstances.Among these circumstances, proper communication networks are inevitable.Because of new developments, the relationship among the state, private sectors, markets, and civil society profoundly changed during the 1980s.

In politically and economically advanced societies the change is based on new information and telecommunications technologies, which affected the media industries in terms of economic restructuring, and on a new social and political environment, as reflected by media contents.Training and continuing development of professionalism can be done to advance and nurtur balanced and impartial news presentation.Professionalism implies standards and procedures, which means journalists tend to act as responsible members of the political establishment, upholding the dominant political perspective.

 

BIBLIOGRAPHY

 

  1. Akhavan-Majid, R., & Wolf, G. (1991). American mass media and the myth of libertarianism: Towardan “elite power group” theory. Critical Studies in Mass Communication.
  2. Dominick, J. R. (1994). The dynamics of mass communication. New York: McGraw-Hill.
  3. Hachten, W. (1981). The world news prism. Ames: Iowa State University.
  4. Hall, S. (1982). The rediscovery of ideology. In J. Curran, M. Gurevitch, & J. Woollacott (Eds.), Mass communication and society (pp. 56–90). London: Edward Arnold.
  5. McQuail, D. (1994). Mass communication theory: An introduction. London: Sage.
  6. M. Gurevitch, T. Bennett, J. Curran, & J. Woollacott (Eds.), Culture, society and the media(pp. 118–150). London: Methuen.
  7. Siebert, F., Peterson, T., & Schramm, W. (1956). Four theories of the press: The authoritarian, libertarian, social responsibility, and Soviet communist concepts of what the press should be and do.
  8. Beyond the Four Theories of the Press: A New Model of National Media Systems, Jennifer Ostini Sydney, Australia, Anthony Y. H. Fung, School of Journalism and Communication, The Chinese University of Hong Kong.

Procedure to investigate suits by or against the government

Posted on | by Tripti Malhotra | Leave a Comment on Procedure to investigate suits by or against the government

Section 79 to 82 and Order XXVII of the Civil Procedure Code, 1908 deal with procedure for investigation of suits by or against the government and public officers. However, these provisions only deal with the procedural rights and liabilities that are enforceable against the government and such persons. The substantive rights and liabilities to be followed are those as are provided by the Constitution of India.

Courts in India are governed by procedural laws which govern the trails and the proceedings before them. While there are one sets of rulings which hold that procedure is only a hand-maid of justice and thus should not come into play to preclude a court from ensuring substantive justice, there are equal other sets of rulings which decree that parties not following procedures of the court are not entitled to relief.

It is in the respect of the second line of decisions that we bring to you a recent decision of the Supreme Court which declares that a suit/claim would not be entertained in which Government was required to be made a party to the dispute and not having so done. Holding that it was essential to ensure that Government was made aware of the litigation by making it a party, the Supreme Court declared that procedural law clearly specifies the situation in which Government is required to be made a party and the law to this regard is settled that if the Government is not made a party, the litigation cannot be proceeded.

Article 300 of the Constitution deals with legal proceedings by or against the Union of India or State and provides that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be; in the case of the Central Government, the Union of India and in the case of State Government, the State, which is suing or is being sued.

The relevant Provisions–

The Apex Court in Chief Conservator of Forests, Government of A.P. Vs. Collector, AIR 2003 SC 1805, has observed that the requirement of provision contained in Section 79 CPC as well as Order 27, Rule 1 CPC is not merely a procedural formality, but is essentially a matter of substance and of considerable significance whereby the special provision as to how the Central Government or the State Government may sue or be sued has been indicated. the authority to be named as plaintiff or defendant, as the case may be, shall be-

a)     in the case of a suit by or against the Central Government,[the Union

of India], and

b)    in the case of a suit by or against a State Government, the State.

 

It has further been observed that in giving description of a party, the distinction between the mis-description or misnomer of party and mis-joinder and nonjoinder of a party suing or being sued has to be remembered and in case of mis-description of party, the Court at any stage of the suit permit correction the cause title so that the party before the Court is correctly described, and, such mis-description will not be fatal to the maintainability of the proceeding. However, in case of non-joinder of parties, the suit or proceeding will fail.

The Apex Court in Secretary, Ministry of Works & Housing, Government of India and Ors. v. Mohinder Singh Jagdev, has observed that the Union of India can lay the suit and be sued under Article 300 of the Constitution in relation to its affairs and under Section 79 read with Order 27, Rule 1 CPC, in a suit, by or against Central Government, the authority to be named as plaintiff or defendant, as the case maybe, shall be the Union of India. However, in the said case, as the appeal was filed by the Secretary of the Department transacting its function on behalf of the Government as per the business rules framed under Article 77 of the Constitution, the same was treated to have been filed by the Union of India by holding that the nomenclature given in the cause title is not conclusive.

In a suit, the Central Government may sue or be sued as the Union of India and a State Government as the State. Section 80 provides that where a suit is to be instituted against the Government or any public official for any act purported to be done in his official capacity, the person filing the suit must give a notice of at least 2 months before filing the suit. The difference in case of a public official is that the suit must be instituted only for acts purported to be done by him in his official capacity. There is no stipulation in the section as regards suits instituted against the government. Any act purporting to be done in his official capacity includes illegal omissions as well. It covers future as well as past acts of such official. It means a series of acts and is applicable even in cases of misfeasance or non-feasance. The act must be such as is done or would have been done in the normal course of his official duties.

The notice must either be served on the person concerned or left at their office. The person entitled to receive the notice in such cases is-

a)     Where a suit is instituted against the Central Government but not the Railway department, a Secretary to the Government.

b)    Where a suit is instituted against the Central Government and it relates to the Railway, the General Manager of Railways.

c)     Where a suit is instituted against the Government of Jammu and Kashmir, the Chief Secretary to the Government.

d)    Where a suit is instituted against any other State Government, a Secretary to such Government or the Collector

e)     Where a suit is instituted against any public official, such public official

 

The content of such notices has been specifically stated in the Code. The notice must state the cause of action, the name, description and place of residence of the plaintiff and the relief sought by him. It must be stated in the plaint that such a notice has been sent. The notice is not a mere formality. It is sent so that the government is given ample opportunity to decide on the legality of the issue with the help of its advisors and public money is not wasted.

A Constitution Bench of this Court in The State of Punjab Vs. The Okara Grain Buyers Syndicate Ltd., AIR 1964 SC 669, held that if relief is sought against the State, suit lies only against the State, but, it may be filed against the Government if the Government acts under colour of the legal title and not as a Sovereign Authority e.g. in a case where the property comes to it under a decree of the Court.

In Ranjeet Mal Vs. General Manager, Northern Railway, New Delhi, AIR 1977 SC 1701, this Court considered a case where the writ petition had been filed challenging the order of termination from service against the General Manager of the Northern Railways without impleading the Union of India. The Court held as under :-

“The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court.” The same was reiterated in The State of Kerala v. The General Manager, Southern Railway, Madras, AIR 1976 SC 2538

In Kali Prasad Agarwala v. M/s. Bharat Coking Coal Limited, AIR 1989 SC 1530, while considering an issue whether the suit lands had vested, free from encumbrance in the State consequent upon the issuance of Notification under Section 3 of the Bihar Land Reforms Act, this Court did not entertain the case observing as under :-

“In our opinion, it is unnecessary to consider the first question and indeed it is not proper also to consider the question in the absence of the State which is a necessary party for adjudication of that dispute. The State of Bihar is not impleaded as a party to the suit and we, therefore, refrain from expressing any opinion on the first question.”

The provision of Section 80 as regards notice is mandatory and no exception must be made. Where however immediate relief is sought, the suit may be instituted without giving such notice and with the leave of the court. But, no relief shall be granted without giving the government or public official an opportunity to be heard. The Government or public official concerned may even waive the requirement of notice. However, where the court feels that no immediate relief is sought after hearing both parties, it may return the plaint to be presented after complying with the necessary requirements of notice. No suit instituted under this provision shall be dismissed on the ground that there is any error or defect in the notice where the notice mentions the name, description and place of residence of the plaintiff and substantially indicates the cause of action and the relief sought. For calculating the period of limitation as regards suits instituted against the government, the period of notice must be excluded.

 

In State Of Rajasthan vs Rikhabchand Dhariwal, AIR 1961 Raj 64 it was stated that whenever it is deemed necessary to implead the State or any one of its Departments as a defendant in a civil suit, it shall be mandatory to comply with the provision of Section 80 of the Civil Procedure Code. Yet again in Chief Conservator of Forests, Government of A.P. Vs. Collector, AIR 2003 SC 1805,  the Court had drawn the analogy from Section 79 CPC, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and  Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order XXVII lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the CPC, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person.

Section 81 provides that where a suit is instituted against a public official for act(s) purported to be done in his official capacity, he shall not be arrested and his property shall not be attached, unless the same is for execution of a decree. Further, he cannot be called upon to attend the proceedings of the court where the court is of the opinion that such attendance would be a detriment to public service.

 

In Sangamesh Printing Press v. Chief Executive Officer, Taluk Development Board, (1999) 6 SCC 44, the State was not impleaded as a party before the Trial Court in a money recovery suit. The same was dismissed on the ground of non-impleadment of necessary party. During appeal, an application was made under O. 1 R. 10 praying for impleadment of the State, however the High Court decided the matter on merits without considering the same. This Court observed as under :

 

“Keeping in view the facts and circumstances of the case, we are of the opinion that the High Court should have decided the appellant’s application under Order 1 Rule 10 C.P.C. and, thereafter, proceeded to hear the appeal in question. Not having disposed of the application under Order 1 Rule 10 has caused serious prejudice to the appellant. We, therefore, set aside the judgment of the High Court and restore Regular First Appeal No 29 of 1987 to its file. The High Court should first deal with the application under Order 1 Rule 10 C.P.C. which is pending before it and then proceed to dispose of the appeal in accordance with law.”

While considering the similar case in Chief Conservator of Forests, this Court accepted the submission that writ cannot be entertained without impleading the State if relief is sought against the State. This Court had drawn the analogy from Section 79 CPC, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order XXVII lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the CPC, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person.

In Bal Niketan Nursery School v. Kesari Prasad, AIR 1987 SC 1970, this Court held that application for impleadment of a necessary party can be filed at any stage of proceeding provided the Court is satisfied that exceptional circumstances prevailing in the case, warrant the impleadment.

Further, Section 82 provides that where a decree is passed against the Government or a public official, the same shall not be executed except where it remains unsatisfied for a period of 3 months from the date of passing of the decree. Such a decree shall be executed where it is passed by a court or any other authority and where the decree is capable of being executed as a decree under the CPC or any other law in force.

PROVISIONS UNDER ORDER XXVII – 

Rule 1 provides that in case of a suit by or against the government, the plaint or written statement shall be signed by any person appointed by the government in this regard by way of a general or special order. The plaint or written statement shall be verified by a person appointed by the government and who is aware of the facts of the case.

In State Of Punjab vs Amar Chand, AIR 1980 P H 318 In a suit against the Punjab Government by one of its employees, the Inspector-General of Police, Punjab, had signed the written statement filed on behalf of the Government as a person authorised by notification for the purpose of O. 27, R. 1, Civil P. C. as the case related to the Police Department. An application was then moved on behalf of the Inspector-General of Police, Punjab that a Superintendent of his office who was a gazetted officer and was well conversant with the facts of the case, would appear in Court to assist the Court. This application was treated by the trial Court as an application for review of its order. The trial Court rejected this application and additionally observed that since the Inspector-General of Police, Punjab had signed the written statement and he was one of the persons who bad been notified for the purpose of R. 1 of O. 27, C.P.C., it shows that he was the only person who could appear for effecting a settlement in the case on behalf of the Government.

 Rule 2 provides that any person who is ex officio entitled to represent the government in judicial proceedings or is authorized by the government in this regard shall be the recognised agent who shall makes appearances, applications and do acts on behalf of the government. The court pointed out in Firm Mohanlal Ramchandra vs The Union Of India, AIR 1972 Raj 152. There are two distinct rules under Order 27 namely Rules 1 and 2. Under Rule 1 only a limited authority to sign and verify pleadings is given. It is only a person authorised to act without any such limitation who can present a memorandum of appeal.

As per the Hon’ble scupreme court in State Of Uttar Pradesh v. Janki Saran Kailash Chandra, 1973 AIR 2071  it is hardly open to the State Government to plead that the District Government Counsel was not authorised to seek adjournment on its behalf for this purpose. It will be somewhat irrational and perhaps incongruous to permit the State, after having taken the benefit of this adjournment, to plead that the application for adjournment was not made on instructions and was unauthorised. To accede to the State Government the right to do so would clearly be unjust to the opposite party which could have rightfully objected to the adjournment, had there been any indication that the prayer was not being made on instructions from the State Government.

Also, a recognized agent like the District Government Counsel can scarcely be considered to appear voluntarily in a case on behalf of the Government in the sense of being unauthorised by his client for the simple reason that he is authorised by virtue of statute to appear, act and make applications on behalf of the Government.

Also in Rohtas Singh vs Commissioner, Agra, AIR 1997 All 278 under Order XXVII, Rule 2, CPC persons, being ex officio or otherwise authorized to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, acts and applications under CPC maybe made or done on behalf of the Government, under Rule 4 of Order XXVII CPC the Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court. Under Rule 4 of Order III, CPC –  No, pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person and every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader as the case may be and filed in Court, or until the client or the pleader dies, or until all proceedings in me suit are ended so-far” as regards the client.

Thus, as per the above referred provisions of Civil Procedure Code once a counsel is engaged for the State he shall continue to remain authorised agent for the State until his engagement is determined by the client or pleader in writing with me leave of the Court, therefore, State Law Officers 

As per Rule 4, the government pleader shall be the agent of the government for receiving all court processes. In Mundrika Prasad Sinha v. State Of Bihar, 1979 AIR 1871 the Hon’ble Supreme Court stated that as per section 2(7) of the CPC, ‘Government Pleader’ includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader.”

Manifestly, this is an inclusive definition and, read along with Order 27 Rule (4) and (8) B(c), clearly yields the inference that Government may have as many Government Pleaders as it likes to conduct its cases even as any client, who has a crowd of cases to be conducted, my engage a battery of lawyers. Government is in no worse position that an ordinary litigant and is not bound to encourage monopoly within the profession. Indeed, the root cause of the petitioner’s desire to corner all the litigation of the Government is that its policy of legal remuneration has no distributive bias nor socially sober ceiling. Some States have already adopted such a policy. Indeed, the State must evolve a policy in regard to its Law Officers which concedes to counsel freedom to recommend settlement of cases if they feel it just to do so and further practises distributive justice which preempts the need for adjournment because of absence of counsel and, lastly, sets a limit on the total fee payable for government work executed.

Section 2(7) of the Code of Civil Procedure being an inclusive definition allows any number of Government pleaders. It vests no sole control on one Government pleader over others and Government is perfectly free to put a particular Government pleader in charge of particular cases. Each one of them is a Government Pleader and may depute other lawyers and exercise control over such surrogates. In this view, there is no error in the summary despatch deservedly given by the High Court to the writ petition whose main merit was daring novelty.

It was further opined by the Madras High Court in V.K. Elayalwar vs The Registrar, (1970) 2 MLJ 343, that under Order 27, Rule 4, Civil Procedure Code, the Government Pleader is the agent of the Government for the purpose of receiving the process against the Government ” issued by such Court “. Obviously, the service of a copy by the petitioner upon the Government Pleader even before his writ petition is admitted and entertained by the Court cannot be effective service within the meaning of Order 27, Rule 4, Civil Procedure Code, for it cannot be regarded as a process issued by the Court.

According to Rule 5, for the purpose of fixing the date for the hearing, the court must have due regard to the communications made to the government, issue of instructions to the government pleader to appear, etc. Such time limit may be extended by the court but not beyond 2 months in aggregate. In pursuant with Rule 7, an extension may also be granted where a public official is the defendant and he takes leave from the court to make a reference to the government before he answers the allegations in the plaint. This is also because as per Rule 5A, in every suit against a public officer, the government is deemed to have been joined as a party.

 

It was also observed by the Supreme Court in Mundrika Prasad Sinha vs State Of Bihar:

“I am clearly of opinion that having regard to the fact that the Government Pleader of this court is employed by the State on remuneration paid from the public exchequer and having regard to the various functions and duties to be performed by him in the due exercise of that office, most of which are of an independent and responsible character, the office must be held to be a public office within the scope of a quo warranto proceeding.

I consider that the most useful test to be applied to determine the question is that laid down by Erle, J. in (1851) 17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have applied that test and I am of opinion that the conclusion that the office is a public office is irresistible”.

In this view, ordering about a Government Pleader is obnoxious but nothing savouring of such conduct is made out although we must enter a caveat that Governments under our Constitution shall not play with Law Offices on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself. After all, a Government Pleader and, in a sense, every member of the legal profession, has a higher dedication to the people.

 

Recommendation for amendment:

In the same case The Central Law Commission went to the extent of recommending a new provision to be read as Order 27 Rule 5B. The Commission observed:

“we recommend the insertion of the following rule:-

5-B(1) In every suit or proceeding to which the Government is a party or a public officer acting in his official capacity is a party, it shall be the duty of the Court in the first instance, in every case where it is possible to do so consistently with the nature of the circumstances of the case, to make every endeavour to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

2) If in any such suit or proceeding, at any stage it appears to the court that there is a reasonable possibility of a settlement between the parties, the court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement.

3) The power conferred by sub-rule (2) is in addition to any other power of the court to adjourn the proceedings.”

The relevance of these wider observations is that avoidable litigation holds out money by way of fees and more fees if they are contested cases and this lures a lawyer, like any other homo economics, to calculate income on a speculative basis, as this Government Pleader has done in hoping for a lakh of rupees.

The Court may also, in any case in which the Government Pleader is not accompanied by any person on the party of the Government; who may be able to answer any material questions relating to the suit, direct the attendance of such a person.” In State Of Punjab vs Amar Chand Walia, AIR 1980 PH 318 it was held that a perusal of this rule would show that what it requires is a person who may be able to answer any material question relating to the suit that may be posed by the Court. These words do not warrant insisting of the Court on the presence of a particular person. The Court can require the presence of a person who is well conversant with the pacts of the case and would be able to assist the Court in effecting a settlement.

Rule 8 states that where the government decides to take defence for acts done by a public official, the government pleader after having been authorized in this regard shall make an application to the court and the court shall cause his name to be entered into the register of civil suits. Where no such application is made by the government pleader on or before the date of hearing as fixed by the notice, the proceedings shall be deemed to be as between private parties. However, the public official in such case cannot be arrested or his property cannot be attached, except where it is for execution of a decree.

In the matter of State of Rajasthan v. Chiranji Lal Agrawal, (1970 Raj LW 111) with reference to competency of the Government Advocate to present the appeal, it was Held by this Court that the provisions of Order 27, Rule 8, C.P.C. being in derogation of the ordinary law should be limited to the purposes expressly for implidly indicated and cannot be extended beyond those purposes. This provision only enables the Govt. pleader to appear and defend public officers but this provision cannot enable the State to file an appeal on bahalf of the public officer. It was further held by this Court that the State is not entitled to contend that the decree having been varied, it is entitled to obtain certificate as a matter of right having regard to the valuation of the dispute for showing that the appeal involves some substantial question of law and the second appeal was consequently dismissed.

Later in Firm Mohanlal Ramchandra v. The Union Of India, AIR 1972 Raj 152, all that Rule 8-B lays down is that wherever the expressions “Government” and “Government pleader” occur in any rule of Order 27 they shall be read as “Central Government” and such pleader as the Central Government may appoint whether generally or specially for the purposes of this order. In Rules 1 and 2 of Order 27 only the expression “Government” occurs and in relation to the present proceedings this will be read as “Central Government”. The expression “Government pleader” does not occur in Rule 2. Therefore, it cannot be argued that every Government pleader who is authorised to appear on behalf of the Central Government is also authorised to act for the Central Government without any express authority in that behalf.

The question which had arisen for consideration of learned Division Bench of this Court was regarding authority of the Asstt. Government Advocate to present the memorandum of appeal when he was not duly authorised by the department to do so with reference to interpretation of the provisions of Order 3, Rule 4(1) and (6) read with Order 27, Rule 8, C. P.C. in relation to any suit by or against the Central Government. A special appeal was preferred by the appellant against the judgment of learned single Judge of this Court in second appeal dismissing its suit for recovery of compensation which was decreed by the trial Court and the first appellate Court. The first contention on behalf of the appellant before this Court was that the preliminary objection was erroneously rejected by the learned single Judge. Reliance was placed on the provisions of Order 27, Rules 1, 2 and 8, C.P.C.

It was consequently held by this Court that since a Government Advocate cannot act without a general or special authority in writing empowering him to do so and since he is not exempted from the requirements of Sub-rule (1) of Order 3, C.P.C. the then Addl. Advocate General of Rajasthan High Court had no authority to present the memorandum of second appeal in this Court, the second appeal was therefore, incompetent and was consequently dismissed.

Pursuant to Rule 6, the court may even direct the attendance of any person who may be able to answer material questions as regards the matter on behalf of the government where such person doesn’t appear in court without the government pleader. No security is required to be furnished by the government or the public official. In Rohtas Singh vs Commissioner, Agra Division, AIR 1997 All 278, it was opined that the government officials against whom Contempt notices are issued should personally incur the expenses of contempt proceedings and only thereafter if they are honorably exonerated the amount spent may be reimbursed to them. It will naturally discover the tendency of flouting the Court orders by the Government officials.

As far as extending legal aid to such government officials to concerned the State Government may prepare a panel of lawyers to defend the government officials in contempt matters but it cannot include in that panel the Government Advocates, Additional Government Advocates, Deputy Government Advocates, Assistant Government Advocates public Prosecutors, Additional/Assistant Public Prosecutors Chief Standing Counsel, Additional Chief Standing Counsel, Standing Counsel or any other counsel who is continuing under engagement for the State. In case, such Stale Law Officers will be allowed to be included in that panel, the Government employees who are facing prosecution for corrupt practices may also demand similar protection from, the State.

Advertisement and freedom of speech

Posted on | by Tripti Malhotra | 1 Comment on Advertisement and freedom of speech

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”. – John Milton

The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restriction, or repression by the government. Advertising is a form of communication for marketing and used to encourage orpersuade an audience (viewers, readers or listeners; sometimes a specific group) to continue or take some new action. Most commonly, the desired result is to drive consumer behaviour with respect to a commercial offering, although political and ideological advertising is also common.

In John W. Rast v. Van Deman& Lewis Company, Mr. Justice Mckenna, dealing with advertisements said:-

“Advertising is merely identification and description, apprising of quality and place. It has no other object than to draw attention to the article to be sold and the acquisition of the article to be sold constitutes the only inducement to its purchase.”above advertisement takes the same attributes as the object it seeks to promote or bring to the notice of the public to be used by it. Examples can be multiplied which would show that advertisement dealing with trade and business has relation with the item “business or trade” and not with “freedom of speech”.

 

The principles, as stated in the case of Reckitt & Coleman of India Ltd v Kiwi TTKLtd (63 (1996) DLT 29), are as follows:

a) An advertisement can declare that theadvertised goods are the best in theworld, even though this declaration isuntrue;

b) An advertisement can state that theadvertised goods are better than thoseof competitors, even if this statement isuntrue;

c) An advertisement can compare theadvertised goods with those ofcompetitors;

d) An advertisement cannot, while statingthat the advertised goods are betterthan those of a competitor, state thatthe competitor’s products are bad, as this would be defamation;

e) In a case of defamation, damages can beclaimed. The court can also grant aninjunction against repetition of the defamatory action.

 

Today, new era of advertising has evolved, which is both cost-effective as well as efficient at global level. Online advertising is the fastest growing medium of advertising that has proven its effectiveness and stability in the advertising world.In a developing economy like India, advertising has a profound impact on how people understand life, the world and themselves, especially with regard to their values, choices and behaviour. Advertising is considered to be the cornerstone of our socio-economic system and may be viewed as the lifeline of free media, paying costs and making media widely accessible. Advertising agencies perform deep research before they create and feature the advertisement for the targeted audience. Few platforms dominated the advertising market and offered an opportunity for the advertisers to pass on the message to people, and market their products.

Freedom to speak freely, without limitation or regulation is termed as the Freedom of Speech. Freedom of Expression implies not only the freedom to speak but also to distribute and access of the information through various media modes. In the advertising and media industry, a self-regulatory guideline of code and conduct is a self-imposed discipline, whose primary objective is to monitor and prescribe the advertising standards for public interest. This system complements government legislation and regulations as well. As the categories of sensitive advertisers are constantly increasing; consumer groups, governments and regulators became more cautious to take lively interest. Monitoring and voluntary self-regulations in advertising, allow reasonable freedom of speech and expression. The members of Communication Council should be aware about the importance of self-regulation.

In many countries, the government controls media so that nobody can publish or broadcast anything that the government considers harmful, immoral or threatening for the stability of the country. Censorship is regulated by a particular body or the government that retains the power base, on the media content.

Right To Advertisement As A Part Of Freedom Of Speech And Expression

Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product advertised. Public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow ofcommercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of “commercial speech” and when examined from another angle, the public at large has a right to receive the “Commercial speech”. Article (19) (1) (a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements. An advertisement giving information regarding a life saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.

An advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Article 19(1) which it seeks to aid by bringing it to the notice of the public. When it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas ‘ social, political or economic or furtherance of literature or human thought; but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines. In such a case, advertisement is a part of business.

It was asserted in HamdardDawakhana (WAKF) LalKuan, Delhi and Another v Union of India, [SCR 1960 (2) 671]that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Art. 19(1) which it seeks to aid by bringing it to the notice of the public.

It allows us to freely express our ideas and thoughts through any medium such as print, visual, and voice. One can use any communication medium of visual representation such as signs, pictures, or movies. Freedom of speech would amount to nothing if it were not possible to propagate the ideas. Thus, the freedom of publication is also covered under freedom of speech. Freedom of speech serves 4 purposes:

a) Allows an individual to attain self fulfillment.

b) Assists in the discovery of truth.

c) It strengthens the capacity of a person to make decisions.

d) It facilitates a balance between stability and social change.

 

This right is not only about communicating your ideas to others but also about being able to publish and propagate other people’s views as well. Thus, freedom of speech and expression is linked to the people’s right to know. Freedom of speech and expression is a broad term and encompasses several things Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions like Universal Declaration of Human Rights, European convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly talk about protection of freedom of speech and expression.

Right to know, to information is other facet of freedom of speech. The right to know, to receive and to impart information has been recognized within the right to freedom of speech and expression. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. In State of Uttar Pradesh v. Raj Narain it was observed that, “The people of this country have a right to know every public act by their public functionaries. The right to know is derived from the concept of freedom of speech.” Through advertisements, not only is the right to know is assured but it is directly proportional to the advertisers freedom of speech and expression. Advertisements maintain competition in the market and help in educating the public.

In Reliance Petrochemicals Ltd v. Indian Express it has been observed by the bench deciding the case that “We must remember that people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live n this age on our land under Art. 21 of the Constitution.”

Since, advertising is a form of communication for marketing and is used to encourage or persuade audience. It is nonetheless dissemination of information regarding the product advertised and the public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements.

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order, because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the exercise of the right to freedom of speech and expression “in the interest of” the public on the following grounds:

a) Security of State

b) Friendly relations with foreign states

c) Public Order

d) Decency or morality

e) Contempt of Court

f) Defamation

g) Incitement to an offence Sovereignty and integrity of India.

 

However, advertisers often view these rules and regulations as violating their right to freedom of speech. Some ads, in particular, were considered derogatory and banned by the government, such as:

  •  A deodorant advertisement that showed a man accompanied by scantily clad women was banned by the government after several complaints were received from viewers about the advertisement being offensive to family viewers.
  • A soft drink advertisement that showed a child bringing the drink for the Indian cricket players was banned after complaints from child labor activists.
  • Advertisements of two underwear ads were banned due to vulgarity and indecency. Objectionable content in ad is usually a reason for taking it off channels.

When RESTRICTIONS:

As stated previously, no right can be absolute and without restrictions or else they might not act in the best interest of the public. Advertisement has been considered as an act of communication or expressing one’s views but the said right may be exploited by the advertisers if not guarded. Restrictions on advertisements might be imposed when the advertiser indulges in the following acts, for it is necessary for the government/the appropriate authorities to intervene if such advertisements are detrimental to the interests of the public at large:

 1. Deception– exists when an advertisement is introduced into the perceptual process of the audience in such a way that the output of that perceptual process differs from the reality of the situation. It includes a misrepresentation, omission or a practice that is likely to mislead. These may include the following:

  • Violates Consumers’ Right to Information: Use of untrue paid testimonials to convince buyers, quoting misleading prices, disparaging a rival product in a misleading manner are some examples of deception. Advertisers of anti- aging creams, complexion improving creams, weight loss programs, anti-dandruff shampoos, and manufacturers of vitamins or dietary supplements are usually guilty of making exaggerated product claims. Some of the examples of advertisements in this category are:

“A fairness cream is advertised with the claim that its user will get a fair complexion within a month” is deceptive in nature  as it deceives/misleads the public into believing such facts which might not take place.

  • Violates Consumers’ Right to Safety: When an advertisement for cooking oil says that using the said oil frees the user from heart problems, and then such an advertisement is misrepresenting the facts. Companies advertise products highlighting health cures and drugs of questionable efficacy and health gadgets of unknown values.
  • Violates Consumers’ Right to Choice: When material facts which are likely to influence buying decisions are not disclosed the advertisement becomes deceptive. In several advertisements it is stated that ‘conditions apply’ but these conditions are not stated. Not disclosing material facts amounts to deception. For example, the recent print ad for Videocon mentions a 1-ton split-AC available for Rs. 15,990/, a very attractive offer. But there is a small asterisk which mentions three things in small font, such as “Conditions apply”, “Prices valid in Delhi and NCR under exchange only”.

2. Bait advertising :It means taking advantage of consumer psychology and depriving consumers of a choice. For example, a consumer is lured into a retail outlet by an advertisement for a low cost item and then is sold a higher priced version or to be defective. Once the consumer enters the store, he or she is pressured to purchase another more expensive item. On visiting such stores, one finds a handful of outdated products on the discount announced and other better products as ‘fresh stock’.

3. Advertising of harmful products: Advertising is not restricted to products that are good for people. According to law in India advertisements for cigarettes, liquor, paan masala, products that are harmful to the public continue to find a place despite the ban imposed by the government in private channels, cable, and through the use of surrogates.

4. Puffery/Fraudulation: Very often we hear that advertisement exaggerates about the product qualities. Now a days ‘puffery’ i.e. “metaphor of idea” forms to be main element in advertising. On the one hand critics accuse it, while on the other defenders i.e. advertisers and advertising professionals opined it as a helping agent to differentiate their brands from the competitors. Puffery is considered to be an ‘opinion’ and not a ‘factual information’. Advertisers claim that the consumers are intelligent enough to distinguish between truth and exaggeration. Moreover they are not blindly going to believe everything as such presented in an advertisement.

5. For a better understanding of the above and relationship between commercial advertisement and freedom of speech and expression, the remarks made by the Hon’ble judge in Colgate Palmolive (India) Limited v Anchor Health & Beauty Care Private Limited (Case (2008) 7 MLJ 1119) might be of utmost relevance: it was heldthat false claims by traders about the superiority of their products, either directly or by comparing them against the products of their rivals, were not permissible. Recognizing the right of producers to puff their own products even with untrue claims, but without denigrating or slandering each other’s products, would be to ‘de-recognize’ the rights of the consumers guaranteed under the Consumer Protection Act 1986.”

To permit two rival traders to indulge in puffery, without denigrating each other’s products, would benefit both of them, but would leave the consumer helpless. If on the other hand, the falsity of the claim of a trader about the quality and utility value of his product is exposed by his rival, the consumer stands to benefit by the knowledge derived out of such exposure. After all, in a free market economy, the products will find their place, as water would find its level, provided the consumers are well informed. Consumer education, in a country with limited resources and a low literacy level, is possible only by allowing a free play for the trade rivals in the advertising arena, so that each exposes the other and the consumer thereby derives a fringe benefit.

Notably, the court found to be permissible advertisements which “tend to enlighten the consumer, either by exposing the falsity or misleading nature of the claim made by the trade rival or by presenting a comparison of the merits (or demerits) of their respective products”. Interpreting such advertisements to be in the ‘public good’, the court cited two instances as an exception to this – namely, if an advertisement is motivated by malice, and if it is false. The court held that this sort of advertising would benefit society because competitors are naturally better equipped to expose a rival’s untrue claims.

The court also held that the benefit to society from such an exposure would “outweigh the loss of business for the person affected”. This observation was based on the court’s assumption that comparative advertising, even if it did not amount to a disparagement of other goods, could result in consumers being misled.

The Court in HamdardDawakhana (WAKF) LalKuan, Delhi v Union of Indiaprimarily relied on the judgment of the United States Supreme Court in Valentine v Chrestensen for the proposition that “purely commercial advertising” is not protected by Article 19(1) (a) of the Constitution. As also in Bigelow v Virginia,421 U.S. 804 the United States Supreme Court reversed the conviction of a Virginia newspaper editor who had been found guilty of publishing an advertisement which offered assistance to women seeking abortion. Abortion was illegal in Virginia in 1971 when the advertisement was published. The women Pavilion, a New York group, urged women who wanted an abortion to come to New York. Blackmun, J. analysing earlier judgments of the Court observed that speech does not lose the protection of the First Amendment merely because it appears in the form of a commercial advertisement.

Laws Imposing Restrictions On Advertising:

1. Consumer Protection Act– This statute provides for the establishment of a Central Consumer Protection Council with the object of promotion and protection of the rights of the consumer, including protection against unfair trade practices. The Act also empowers the District Forum to take measures to discontinue the unfair trade practices. The Forum also has the power to issue corrective advertisements to neutralize the effect of a misleading advertisement. India does have other legislations that regulate unfair trade practices, in addition to the Consumer Protection Act.

2. The Monopolies and Restrictive Trade Practice act, 1969: It had been the most effective Act in the eighties and nineties to regulate undesirable advertising. In the year 1984, the government brought, through an amendment, “unfair trade practices” under the purview of the MRTP Commission and the Office of the Director General (Investigation and Registration). However, this Act is being replaced by the Competition Act, 2002 but the cases pending under the MRTP Commission are still being heard. Moreover, a Competition Commission has been set up under the Competition Act to deal with monopolies and restrictive trade practices. The complaints pertaining to unfair trade practices are still being handled by the MRTP Commission or the consumer courts. The MRTP Act has been very effective in hauling a number of advertisers to stop advertisements which are prejudicial to consumer interest through its ‘cease and desist orders’.

3. Information Technology Act, 2000 (IT Act): The IT Act makes the publication and transmission in electronic form of material which is lascivious or appeals to the prurient interest or it its effect is such as to tend to deprave and corrupt persons who arelikely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, punishable with imprisonment and fine. The IT Act applies to any offence committed by any person outside India, if it involves a computer, computer system or computer network located in India. The offences under the IT Act are punishable with imprisonment and/or fine.

4. Indian Penal Code, 1860 (IPC): The IPC makes it a punishable offence to advertise any obscene publication or its distribution, sale, hire or circulation. It is also an offence under IPC to publish advertisements relating to any lottery which is not a state lottery or which is not authorized by the State Government. The IPC prohibits the sale, distribution, public exhibition or circulation of any obscene book, pamphlet, paper, drawing, painting, representation, figure or any other obscene object.

5. The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (CTPA): The CTPA prohibits advertisement of cigarettes and other tobacco products which, directly or indirectly, suggest or promote the use or consumption of cigarettes or any other tobacco products, by any person who is either engaged in the production, supply or distribution of such products or by a person having control over a medium who causes such advertisements to be advertised through that medium or by a person who takes part in such advertisement.

6. The Drugs and Magic Remedies (Objectionable Advertisements) Act : This statute prohibits advertisements of drugs for certain purposes and of treatment of certain diseases and disorders. It also prohibits misleading advertisements relating to drugs and advertisements of magical remedies for the treatment of certain diseases and disorders. Under this Act, “advertisement” includes any notice, circular, label, wrapper or other document and any announcement made orally or by means of producing or transmitting light, sound or smoke.

7. The Emblems and Names (Prevention of Improper Use) Act, 1950: This statute prohibits the use, for professional or commercial purposes, of select emblems and names of national or international significance. An advertiser who makes commercial use of such emblems and names would be liable under this statute

 8. SEBI (Mutual Funds Regulation), 1996: SEBI Guidelines for Advertisements by Mutual Funds – the Guidelines list out detailed requirements for advertisements by Mutual Funds. The guidelines apply to all forms of advertisements, communications, released in any form and through any media including websites. It defines an “advertisement” as any material published or designed to be published on which a mutual fund has no control over the audience and which is broadly distributed.

9. The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994: This statute prohibits advertisements relating to predetermination of sex.

10.The Transplantation of Human Organs Act, 1994: This statute makes it a punishable offence to issue advertisements inviting persons to supply, for payment a human organ.

 

COMMERCIAL ADVERTISEMENT :

 

HamdardDawakhana (WAKF) LalKuan, Delhi v. Union of India, [SCR 1960 (2) 671] – The Court in this case dealt with advertising of prohibited drugs and commodities. The Court was principally dealing with the right to advertise prohibited drugs, to prevent self-medication and self-treatment. It is in no doubt true that some of the observations referred to above go beyond the needs of the case and tend to affect the right to publish all commercial advertisements. A Constitution Bench of this Court held that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Art. 19(1) which it seeks to aid by bringing it to the notice of the public.

When it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas social, political or economic or furtherance of literature or human thought; but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines. In such a case, advertisement is a part of business and it was being used for the purpose of furthering the business of the petitioners and had no relationship with what may be called the essential concept of the freedom of speech. It cannot be said that the right to publish and distribute commercial advertisements advertising an individual’s personal business is a part of freedom of speech guaranteed by the Constitution.

The Court came to the conclusion that the sale of prohibited drugs was not in the interest of the general public and as such “could not be a speech” within the meaning of freedom of speech and expression under Article 19(1) (a) of the Constitution. The Court further held in the said case that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed.

HamdardDawakhana’s case was considered by this Court in Indian Express Newspapers (Bombay) Private Ltd. &Ors. etc. etc. vs. Union of India, 1985(2) SCR 287 – herein, the Parliament of India enacted a statute that was aimed at controlling advertisements of drugs in some specified cases [Drugs and Magic Remedies (ObjectionableAdvertisements) Act (1954)]. Purpose of the act was to prevent ‘objectionable’ and‘unethical’ advertisements in order to discourage self-medication and self treatment. Theconstitutionality of this Act was challenged by the plaintiff on the grounds that itrestricted his right to freedom of speech and expression unfairly, in contravention of Arts19(1)(a) and Art 19(2) and also that it violated his rights to carry on business because therestrictions were allegedly in contravention of Art 19(1)(g) .

The Judgment: The Bench that decided the case acknowledge that advertisement was no doubt a form of speech but that “it’s true character is detected by the object for the promotion of which it is employed. The judgment acknowledged that advertisements acquire some, but notall, elements of speech or expression intended for protection by Art 19(1)(a) by bringing to the notice of the public”.

The activity or product or service that it seeks to publicize [the right to disseminate and receive information that Art 19(1)(a) recognizes in certain cases]. But the judgment goes onto to state that the content and intent of the advertisement is extremely important when deciding whether it deserves protection under Arts 19(1)(a) and 19(2).When it (advertisement)takes the form of a commercial advertisement which has an element of trade and commerce, it no longer falls within the concept of freedom of speech, for the object is not propagation of ideas, social political or economic, or furtherance of literature or human thought, but the commendation of the efficacy , value and importance of certain goods.

This statement forms the crux of the judgment and encapsulates the legal position occupied by commercial speech when it comes to protection under Art 19(1)(a).The judgment iterated that advertisements prohibited by the impugned Act relate to trade and commerce and not the propagation of ideas and that advertising of prohibited drugs and commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of Art 19(1)(a).

The observations in HamdardDawakhana’s case to the effect that advertising by itself would not come within Article 19(1) (a) of the Constitution, were explained by this Court in Indian Express Newspapers’s case in the following words: The main plank of that decision was that the type of advertisement dealt with there did not carry with it the protection of Article 19(1) (a). the court finally opined that all commercial advertisements cannot be denied the protection of Article 19(1) (a) of the Constitution merely because they are issued by businessmen.”

The combined reading of HamdardDawakhana’s case and the Indian Express Newspapers’s case leads us to the conclusion that “commercial speech” cannot be denied the protection of Article 19(1) (a) of the Constitution merely because the same are issued by businessmen. Advertising is considered to be the cornerstone of our economic system. Low prices for consumers are dependent upon mass production, mass production is dependent upon volume sales, and volume sales are dependent upon advertising. Apart from the lifeline of the free economy in a democratic country, advertising can be viewed as the life blood of free media, paying most of the costs and thus making the media widely available. 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.

In the case of Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal reported in (1995) 5 SCC 161 Supreme Could held that commercial advertisement no doubt is a form of speech but its true character is reflected by the object for promotion of which it is employed. Only when an advertisement is concerned with the expression or prorogation of ideas that it can be said to be related to freedom of expression and speech. The object and purpose for which advertisement is published is the determining factor. When propagation of ideas and thoughts is inconsequential, but the real purpose and object is promotion of sales of goods and services and personal benefit without any social purpose, commercial advertisement cannot have the same decree of constitutional protection as in case of social or political speeches.

The Supreme Court further observed that commercial advertisements helps dissemination of information regarding the product and the public also benefits by the information which is available and honest and economic marketing is protected under Article 19(1)(a). It was observed that said freedom is both for the speaker as well as the recipient of the speech, but an advertisement for a life saving drug may be more important and leads greater public interest than an advertisement for pure trade consideration.

Mahesh Bhatt and anrv. Union Of India, 147 (2008) DLT 561was another landmark judgement on the said point – herein, the Writ Petitions challenged the legality and validity of some of the provisions of the Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 under which “advertisement” was defined to include any visible representation by way of notice, circular, label, wrapper or other document and also includes any announcement made orally or by any means of producing or transmitting light, sound, smoke or gas.

The court had observed advertisements means to make an announcement and inform public and disseminate information through media and other means, to draw the attention of the public/individual concerned to some information.It was held thatAdvertisements of tobacco products cannot per-se be regarded as immoral. Consumption Consumption of tobacco or smoking is unhealthy but is not immoral. The term ‘decency’ is more expansive in its scope. Commercial advertisements are entitled to limited protection under Article 19(1)(a) of the Constitution if they are in public interest. Commercial advertisements of tobacco products are not expressions protected under Article 19(1)(a) of the Constitution. Commercial advertisements will include indirect or surrogate advertisements which promote and encourage use of tobacco products. However, commercial advertisements are different and distinct from news. The purpose and object behind news is to disseminate information, thoughts and ideas. Pre-dominant nature and character of the article, picture, etc, will determine whether it is a commercial advertisement or a news item/picture.

Curtailment Of The Advertisements

A Constitution Bench held in Sakal Papers (p) Ltd. and others. vs. Union of India, AIR 1962 SC 305 – considered the constitutional validity of the Newspaper (Price and Page) Act, 1956. The said Act empowered the Government to regulate the prices of newspaper in relation to their pages and sizes and to regulate allocation of space for advertisement matter. This Court held that the Act placed restraints on the freedom of press to circulate. This Court further held that the curtailment of the advertisements would bring down the circulation of the newspaper and as such would be hit by Article 19(1) (a) of the Constitution of India.

It was argued before this Court that the publication of advertisements was a trading activity. The diminution of advertisement revenue could not be regarded as an infringement of the right under Article 19(1) (a). It was further argued before this Court that devoting large volume of space to advertisements could not be the lawful exercise of the right of freedom to speech and expression or the right of dissemination of news and views. It was also contended that instead of raising the price of the newspaper the object could be achieved by reducing the advertisements. The Supreme Court ruled that it is not open to the State to curtail the freedom of the press for promoting the general welfare of a section or a group of people unless its action can be justified by a law strictly falling under clause 2 of Article 19. Freedom of the Press cannot be curtailed on such omnibus grounds as in the interest of the general public as in the case of the freedom to carry on trade, business or profession. The restriction must be reasonable. In other words, it must not be excessive or disproportionate. The procedure and the manner of imposition of the restriction also must be just, fair and reasonable.

In Bennett Coleman & Co. &Ors. v. Union of India, 1973 2 SCR 757it was held that the law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will not be saved by Article 19 (2). If the area of advertisements is restricted, price of paper goes up. If the price goes up circulation will go down.The High Court did not accept the contention that a newspaper has a constitutional right to obtain advertisements from the government. It, however, held that the government cannot exercise this power or privilege to favour one set of newspapers or to show its displeasure against another section of the press. It should not use the power over such large funds in its hands to muzzle the press, or as a weapon to punish newspapers which criticise its policies and actions. It has to use the funds in a reasonable manner consistently with the object of the advertisement viz. to educate and inform the public about the activities of the government.

Advertisement And Freedom Of Speech

It was later held in the landmark case of Tata Press Limited v.Mahanagar Telephone-Nigam, 1995 AIR 2438 that it cannot be said that every advertisement is a matter dealing with freedom of speech nor can it be said that it is an expression of ideas. In every case one has to see what is the nature of the advertisement and what activity falling under Art. 19(1) it seeks to further. The advertisements in the instant case relate to commerce or trade and not to propagating of ideas; and advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of freedom of speech and would not fall within Art. 19(1) (a). The main purpose and true intent and aim, object and scope of the Act is to prevent self- medication or self-treatment and for that purpose advertisements commending certain drugs and medicines have been prohibited.

TheSupreme Court of India gave out one of the most progressive pieces of judicial interpretation: the right to commercial freedom of speech and expression. Of far reaching consequence to media and business, wholly synonymous with the spirit of liberalisation “this great constitutional advance was made on simple and relatively boring facts”.

In a nutshell it means that, for the first time in India, advertising is protected as a form of free speech.

The judgement results from a dispute between Tata Press and MTNL whose monopoly on printing telephone directories under the Indian Telegraph Act, was successfully challenged by Tata’s Yellow Pages.

It was contended that it is the public’s right to receive information by way of advertising implicit in the concept of “free speech and expression” guaranteed under Article 19(1)A of the Constitution. In taking a holistic approach to the issue, Justice Kuldip Singh described the free flow of commercial information as “the cornerstone of our economic system. Low prices for consumers are dependent on mass production (which) is dependent on volume sales (which) is dependent on advertising.”

To safeguard free enterprise, the heart of liberalisation, advertising is vital to both manufacturer and consumer. In fact, Justice Singh goes further in supporting the right of the consumer, ‘the recipient of commercial speech’, with a striking example: “An advertisement giving information regarding a life saving drug may be of much more importance to the general public than to the advertiser who may be having purely a trade consideration Article 19(1) (a) not only guarantees freedom of speech and expression, it also protects the rights of

 

Individuals to listen, read and receive the said speech.”

The judgement is also interpreted “as a resounding victory for the media,” because it dwells at length on the role of “advertising as the life blood of a free media…the newspaper industry obtains 60 to 80 per cent of it’s revenue from advertising.For a democratic press the advertising ‘subsidy’ is crucial. Without advertising,’ the resources available for expenditure on ‘news’ would decline, which may lead to the erosion of quality and quantity. The cost of ‘news’ to the public would increase, thereby restricting it’s ‘democratic’ availability.” “Cutting off advertising is like cutting off the lifeblood of a newspaper and state authorities which have indulged in this form of coercion in the past have been pulled up by the court.” The absolute right of a newspaper to receive advertising “as commercial free speech” is an issue which bears further legislative review in the light of the new law.

Freedom of speech goes to the heart of the natural right of an organised freedom-loving society to “impart and acquire information about that common interest”. If any limitation is placed which results in the society being deprived of such right then no doubt it would fall within the guaranteed freedom under Art. 19(1) (a). But if all it does is that it deprives a trader from commending his wares it would not fall within that term.

 

Misleading & Surrogate Advertising:

The Consumer Protection Act, the advertising Code, the Censor Boardand the working group on Misleading Advertisements set up by the Consumer Affairs, Food and Public Distribution Department, Government of India, have all dealt with the issue of misleading advertisements. The preferred solution is to ask the advertiser to issue a corrective advertisement to neutralize the effect of misleading advertisements. In India, due to severe restrictions on advertising certain products like alcohol, tobacco products, medicines and baby food, a whole genre of misleading / surrogate advertising has emerged. In such advertising, a brand is endorsed using a product different from the actual product being promoted.

Like in the matter of United Breweries Limited v. Mumbai GrahakPanchayat, the matter of debate included the advertisements of Bagpiper Soda. This advertisement was held to be a surrogate advertisement for Bagpiper whiskey.

The National Consumer Disputes Redressal Commission, New Delhi, held that the word “soda” was used in an inconspicuous manner, while the word “Bagpiper” was boldly stated, with the baseline “India’s largest, World’s No. 3”. Advertisements canbe direct and also indirect whereby surrogate or product placement, use or trade name display, techniques are adopted but with the object and purpose of drawing attention to the object of publicity. In the present day context, direct and indirect advertisements are employed to attract attention and interest, make the product known and justify it’s consumption and use. Supply of free medicines to doctors by pharmaceutical companies has been held to be publicity and advertisement.

 

Advertising Regulation in India

The Government of India has not set up a regulatory body in India to regulate advertisements. Depending on the nature of the grievances, the power to regulate advertisements may be exercised by a vast variety of authorities, including the courts, Central and State Governments, tribunalsor the police authorities. In addition to these authorities, is the Press Council of India Act, 1978 which is also empowered to regulate press advertisements. The Council is guided by its “Norms of Journalistic Conduct”. in the regulation of advertisements. The Press Council has the power to hold an inquiry into a complaint against a newspaper and if it finds that the newspaper has violated the standards prescribed by the council, it may warn, admonish or censure the newspaper, the editor or journalist as the case may be.

India however, does have a self regulatory body dealing with both online and other forms of advertising. The Advertising Standards Council of India (ASCI) monitors certain standards and fairness in the domain of advertising. It was established in India in 1985. It is a self regulatory voluntary organization whose role and function of the ASCI is to deal with complaints received from consumers and industry against advertisements which are considered as false, misleading, indecent, illegal, leading to unsafe practices or unfair to competition and in contravention to the advertising codelaid down by the ASCI. While safeguarding consumer interests, ASCI also monitors and guides the commercial communications of practitioners in advertising. The aim of advertisement is to promote sales of products or service by affecting a purchasing decision. Although the benefits of advertising are numerous it is one aspect of marketing that is subjected to a severe criticisms. And now there is a new medium for advertisers to explore, the Internet!

While there may be no specific legislations governing online advertising in India, ASCI does recognize online advertising. ASCI’s Code of advertising and existing statutes provides necessary guidance and arsenal to combat errant advertisers. Finally, guidance may be sought by simplify reading the Terms and Condition’s of the website, the advertiser wants to advertise on. This exercise will avoid any negative repercussions following release of an online advertisement.

CONCLUSION:

Advertising as a “commercial speech” has two facets. Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product-advertised. Public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements.

The economic system in a democracy would be handicapped without there being freedom of “commercial speech”. In relation to the publication and circulation of newspapers, this Court in Indian Express newspaper’s case, Sakal paper’s case and Bennett Coleman’s case has authoritatively held that any restraint or curtailment of advertisements would affect the fundamental right under Article 19(1) (a) on the aspects of propagation, publication and circulation. Examined from another angle, the public at large has a right to receive the “Commercial speech”. Article (19) (1) (a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements.

The protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech. The recipient of “commercial speech” may be having much deeper interest in the advertisement than the businessman who is behind the publication. An advertisement giving information regarding a life saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.We, therefore, hold that “commercial speech” is a part of the freedom of speech and expression guaranteed under Article 19(1) (a) of the constitution.