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State ads and free press

by A G Noorani, 18 November 2011

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dawn.com

November 12, 2011

Early this week, India’s minister for information and broadcasting, Ambika Soni, was asked: "The government recently froze ads to some newspapers in Kashmir that are critical of the state. Are you trying to regulate the press this way?"

Her frank reply revealed a lot: "I wasn’t kept in the loop and was told it was an administrative decision to do so, taken by the home ministry at the highest level. I phoned Union Minister P. Chidambaram and told him that while I can’t interfere with an administrative decision arrived out of security concerns, I must know about such decisions. We’ll be discussing the issue soon and the decision will be reviewed."

The freeze on government ads to some newspapers in Kashmir was well known for long. ’Security concerns’ is a false excuse traditionally trotted out when ads are withheld to punish newspapers critical of the government`s policies. The present government of Jammu and Kashmir is the most repressive since the days of Bakshi Ghulam Mohammed and for identical reasons — to curb the surge of the secessionist sentiment; The chief minister Omar Abdullah is notoriously intolerant of criticism.

His major domo, the `political adviser`, one Devender Rana, is a media tycoon whose credentials for the post are the best-kept secret of these two. What emerges from the information and broadcasting minister`s disclosure is that Omar Abdullah is backed by P. Chidambaram, the union home minister. What store can one lay by public pledges of conciliation when repression is pursued alike by the Kashmir and central governments?

It was fairly common during the British Raj for the authorities to punish newspapers critical of its policies by stopping ads in them. The press had hardly any remedy, except, tapping Indian concerns for their ads. After Independence, the situation changed in two fundamental respects. On the one hand, the state`s functions expanded and with it the volume of advertisements it must perforce place in the media. This gives the state power to punish and reward. But the other charge nullifies this power.

The constitutions of Pakistan and India embody judicially enforceable fundamental rights to equality and to freedom of speech and expression, which includes freedom of the press as well. The courts, initially slow to assert themselves, now act with vigour. They are astute to rip apart false excises.

In 1981, the Andhra Pradesh high court at Hyderabad accepted a petition by a fearless Telugu daily Eenadu , owned and edited by Ramoji Rao, a doughty fighter for press freedom. It struck down as void three conditions in a government order on ads. They were “rabid, abusive”; “distorting news for mischievous purpose”; and “fomenting group rivalries and quarrels and thereby indulging in mischievous gossip-mongering and sensationalism”.

They were vague and, therefore, susceptible to violation of the right to equality. “A newspaper may be fanatical about what it considers to be a right cause. It may be abusive against what it considers to be injurious to the society or the community. …[W]hether a newspaper distorts news for a mischievous purpose or not is difficult to determine. …Similarly, when a newspaper takes sides with a particular group, it is difficult to say that it does so for the purpose of fomenting group rivalries”.

In 1990, the high court of Jammu & Kashmir ruled on a petition filed by a daily Wadi Ki Awaaz (`Voice of the Valley`) that “the policy of grant of largess in the form of distribution of commercial advertisements must be conveyed and structured by rational, relevant and non-discriminatory standards”. The petitioner as the printer, editor and publisher was “entitled to the issuance of advertisements” under the policy framed by the government.

By then, two principles were firmly established. Grant or refusal of ads by a state is open to judicial review. The state does not stand on the same footing as a private individual. It is the trustee of public funds to which taxpayers contributed. Secondly, while no paper or journal has a right to demand ads, it has every right not to be discriminated against by the state when it exercises its powers. The court is entitled to demand production of the document setting out the policy in order to determine the issue of discrimination.

Now, two decades later a more relevant and effective jurisprudence has evolved. The ruling of the Supreme Court of India on Nov 1, 2002 strikes a powerful blow for press freedom. The government of Uttar Pradesh formulated a policy whereby an amount of five per cent from the bills submitted by newspapers for ads published was to be deducted if they had a circulation of more than 25,000 copies. Its object was to finance its scheme for “pension and social security for full-time journalists”.

The Hindustan Times successfully challenged this impost. The court pointed out that “advertisements in a newspaper have a direct nexus with its circulation”. It recalled its observations in the earlier cases when it had said “advertising can be viewed as the lifeblood of free media, paying most of the costs and thus making the media widely available. The newspaper industry obtains 60 per cent to 80 per cent of its revenue from advertising. Advertising pays a large portion of the costs of supplying the public with newspapers.

For a democratic press the advertising `subsidy` is crucial. Without advertising, the resources available for expenditure on the `news` would decline, which may lead to an erosion of quality and quantity”. The cost of the `news` to the public would increase; the circulation would decline.

The court proceeded to reject a familiar plea by governments which deny ads to offending papers. “A state, cannot in view of the equality doctrine contained in Article 14 of the Constitution of India, resort to the theory of `take it or leave it`. The bargaining power of the state and the newspapers in matters of release of advertisements is unequal. Any unjust condition thrust upon the petitioners by the state in such matters, in our considered opinion, would attract the wrath of Article 14. It is trite that the state in all its activities must not act arbitrarily. Equity and good conscience should be at the core of all governmental functions.”

The Press Commission`s report (1954) made an important point. The government “ is a trustee of public funds and therefore bound to utilise them without discrimination to the best advantage of the public”.

The writer [A.G. Noorani] is an author and a lawyer.

P.S.

The above article from dawn.com is reproduced here for educational and non commercial use.