Gemini Television Li... v. Election Commission ...

M.S Liberhan, C.J:— This order will dispose of both the writ petitions as they raise common questions of law and fact.

2. The brief facts can be taken from W.P No. 18419/1999 in order to dispose of the questions raised in these writ petitions. The petitioner impugned the ban sought to be enforced by the respondent No. 4 specifically and other respondents indirectly in view of the Election Commission's proceedings dated 20-8-1999, restraining the political parties, any person of his own or on behalf of any association, society, media or political party to campaign for candidates or anyone else on electronic media, relating to election matters, in conformity with the Model Code of Conduct and policy decision taken in 1998, in consultation with political parties and media persons. The ban has resulted in frustration of contracts entered into with the Congress Party, Telugu Desam Party and other political parties, societies, persons, television companies, radios and cinemas and with other electronic media of publishing, advertising, etc., in the electronic media. Policy decision of the Election Commission prohibiting from campaigning or advertising the political ideology or programmes, including election publicity is ultra vires of the Constitution and fundamental principles of democracy.

3. It is contended, in the present day, electronic media is the only mode to reach the public, especially illiterate electorate, which constitutes the majority of the Electoral College, who cannot read and write. Electronic media is the only medium to propagate political programmes, ideologies, campaign, or educate voters about their rights to vote, make a choice for whom to vote, disseminate the pit-falls of the Government, highlight the attainments of the Governments, etc. It is the most efficacious medium for informing the voters the policies, developmental works and shortfalls of the Government in the shortest period. The restriction is impugned as (i) unconstitutional, arbitrary, and capricious; (ii) discriminatory as there is no such ban on the other media, like newspapers, pamphlets, public speeches, etc. It is submitted that there is neither an order of the Election Commission prohibiting advertisement or imposition of any other ban of any nature, especially on the private electronic media, nor there is any specific media policy as such which provides for such a prohibition. The decision of prohibiting publicity through private electronic media is without any authority. Respondents cannot impose such a prohibition, which runs contrary to the statutory provisions of the Representation of the People Act, 1951. The Election Commission cannot provide the policy or impose restrictions under the garb and cloak of superintendence relating to the area covered by the statutory provisions. The policy decision was sought to be restricted only to publicise and disseminate the opinion poll.

4. Further challenge to the imposition of restriction being contrary to the very basic concept of democracy and free and fair election and the right of freedom of the candidate or the voter or the sympathiser to canvass for a person. The prohibition violates Art. 19(1)(a) of the Constitution, being unreasonable restriction on the freedom of speech, apart from being arbitrary and discriminatory. The Election Commission has prescribed time to the recognised parties to broadcast and telecast on National television and radio, while declining the same privilege or right for the private electronic media. Prohibition on the private electronic media for publicising, campaigning or carrying out the propaganda or advertising while permitting it in case of press and other media amounts to invidious discrimination.

5. The respondents have denied the claim of the petitioner. They claimed to have exercised the power under Art. 324 of the Constituion, which provides for superintendence, direct control on elections and to conduct the elections in free and fair manner, keeping in view the sanctity of elections.

6. The respondent in counter-affidavit accepted that, though the Representation of the People Act and the Conduct of Election Rules, 1961 provide for election expenditure by the candidate, in spite of the observations made by the Hon'ble Supreme Court in Civil Appeal No. 2115/1993 decided on 19-11-1993 and in C. Narayanasioamy v. C.K Jaffer Shade (1996) 2 SCC 752 , AIR 1996 SC 3081 decided on 9-8-1994, to the effect that there is lacuna in the Representation of the People Act or the statutory provisions enacted by the Parliament and it is for the Parliament to fill the same, yet no steps have been taken by the Parliament. It was further observed that excessive expenditure is not a welcome thing as it tends to vitiate free and fair elections, which will defeat the object of sanctity of elections.

7. The learned Counsel for the writ petitioner at the very opening of the arguments contends that there is no order of the Election Commission prohibiting the private electronic media or barring the advertisements or any campaign, etc., therefore, the order of the respondent No. 4 injuncting the media not to carry out the advertisements and the campaign cannot be sustained. A specific question was put to the learned Counsel for respondents 1 to 4 whether there is any order of the Election Commission prohibiting the private electronic media or barring the advertisements or any campaign on any electronic media by any political person, political party, private party, individual citizen, company or any legal person. The learned Counsel for the Election Commission specifically stated as under:

“We have consulted the parties and the electronic media also. A decision has been taken but not recorded in the minutes. The only reference I can make in this regard is with respect to the letter dated 20-8-1999 which has been reproduced in the statement.”

8. The learned Counsel for the petitioner has further stated that in order to support his submission that there is no such decision by the Election Commission, a requisition was made by the petitioner for supply of a copy of the decision if any injuncting or imposing prohibitions on the electronic media. In answer to the same, the Commission supplied only a Compendium of Instructions on conduct of elections, 1998. That fact has not been denied in the counter-affidavit.

9. The learned Counsel for the Commission stated on instructions from the Commission that there are decisions taken but not recorded in the minutes. However, no such decision has been produced in spite for our repeated asking in Court and number of adjournments having been granted for the said purpose.

10. We have read the letter dated 20-8-1999 addressed to the Secretary of Ministry of Information and Broadcasting, Chief Secretaries of the States, Chief Electoral Officers of other States on the subject of advertisement on electronic media by the Election Commission. Reading the clauses of the said letter, the learned Counsel for the respondent vehemently argues and wants us to infer that the decision prohibiting the private electronic media from advertising, propagating ideology or canvassing the voters, was taken by the Election Commission after taking note of the fact that the electronic media can be made use of only by a few major parties thereby creating serious distortion in the electoral arena and in a poor country like India, democracy will be totally disturbed by money power if such a situation is allowed. The Election Commission during 1998 elections introduced a scheme providing for extensive time-slots on the electronic media for recognised political parties on the National Public Broadcasting System with a maximum reach in the country for canvassing. Learned Counsel read clause (4) to the effect that “taking all other relevant factors into consideration, the Commission decided during General Elections of 1998 that it would not be proper to allow advertisement by political parties and candidates or other organisations for the purpose of election campaign in any form on the electronic media. All concerned accepted the decision and the norms were fully respected by the electronic media throughout the election period then.” Clause (6) provided: “The Commission in the context of the current general elections has gone into the question of advertising on electronic media and sees no reason to review the policy followed in the last general elections. Accordingly, it is clarified that no advertisement or campaign by political parties, candidates or anyone else be allowed on electronic media and the existing policy of the Commission will continue”. In continuation of the said letter, the respondent No. 4 on 26-8-1999 issued a letter to the petitioner stating that the Election Commission of India has clarified that no advertisement or campaign by political parties, candidates or anyone else is allowed on electronic media, which is impugned. The petitioner has challenged the letter dated 20-8-1999 issued by Page: 177the Election Commission to the various officers referred to above, though it was never communicated to the petitioner.

11. The learned Counsel for the writ petitioner as well as the learned Counsel for the respondents accept at the Bar during the course of arguments that in tlie Compendium of Instructions of the Conduct of Elections (hereinafter referred to as ‘the instructions’), item No. 83 provides for code of conduct for the television broadcasting in connection with elections and also provide for do's and don'ts which are reproduced hereunder:

“3. (a) Don'ts

(1) There should be no coverage of any election speeches or other material that incites violence, one religion against another, one caste against another, one language group against another, etc.

(2) In any constituency only one candidate should not be projected. While it is not necessary to cover every single candidate (as some constituencies may have several candidates) at least the more important should be covered in any report from a constituency.

(b) Do's

(1) The following could be covered in a balanced and fair manner:—

—campaigning and excerpts from campaign speeches;

—symbols, banners, flags and other campaign material of parties:

—results of opinion polls by non-political, professional organisations with a proven track record,

—party manifestoes (critical analysis of which is also perfectly legitimate):

—candidates and their views in different constituencies across the country:

—the positions taken by the main parties on different issues important to the electorate:

—debates between major parties and candidates:

—analysis of previous voting patterns, victory margins, swings, etc.”

12. We may notice that there is nothing specifically or by implication providing a bar from advertisement, campaign or taking out the political propaganda on the electronic media much less on a private electronic media. It would be reasonable for us to assume that when specifically do's and don'ts have been provided for advertisement, etc., on the private media, it would be deemed that it is not bar as it is axiomatic that what is not specifically barred in a statute or legislation same is permitted.

13. Item 84 of the instructions provides scheme of broadcasting over Akash Vani and Doordarshan by recognised political parties during the election to the Lok Sabha and Legislative Assemblies. Reading it in its entirety does not provide for any bar of the nature attempted to be imposed by the Election Page: 178Commission or its agencies. It provides for the time slot and the guidelines for broadcast and telecast by the Akash Vani Stations and Doordarshan Kendras and providing prohibition to the Akash Vani and Doordarshan not to permit criticism of friendly countries, attack on religion or communities. We can notice specifically that broadcasts by political parties will be in addition to any panel discussions or other programmes of political education organised in the course of the ordinary functioning of the broadcasting media. It specifically recognised the statutory provisions of the Representation of the People Act, 1951 that all broadcasts shall be brought to an end or concluded 48 hours before the polling. Thus, there is no separate policy decision with respect to electronic media or private electronic media much less a decision or injunction prohibiting advertisements, etc., as is being sought to be imposed.

14. After reading the instructions and the impugned letters issued in their totality and in the context of the media policy of 1998, we are of the considered view, that it cannot be held that the Election Commission has ever taken any conscious or otherwise a decision to prohibit the private electronic media to carry out its trade activity of publicity, election campaign, political agenda, etc., to be projected on the media. We may hasten to add that paragraph 4 of the counter where the Election Commission has observed that the prohibition is in consistence with the media policy runs counter to the media policy as has been referred to above. There is nothing in the media policy which provides for such a prohibition. Even in the statement it is accepted that no decision has been conveyed by the Election Commission to the electorate, voter, media or to the people who are likely to be adversely affected. Any decision taken by the Department inter se even if assumed to be there, cannot be termed to be a decision unless the public or persons who are to abide by it are informed of that. At the most it can be termed as an inter-departmental correspondence. Correspondence inter se department if at all there is any it cannot be termed to be decision of the Election Commission as such. There is nothing from record or otherwise shown to us to infer the assumed decision of prohibition imposed and impugned.

15. The petitioner has specifically averred that there is no decision in the alleged media policy regarding the prohibition of advertisement, etc., through private electronic media. The only stand taken by the respondents in their counter is to the effect that Code of Conduct prescribed in items 83 and 84 of the instructions is with regard to the speeches by political parties over Doordarshan and Akash Vani but there is no Code of Conduct for advertisement. The advertisement made by the parties is totally different from the speeches. Poor illiterate masses being unduly influenced by the said advertisement cannot be surmised. Thus, there being no denial much less a specific denial about the averment of the absence of the decision of the Election Commission prohibiting the advertisement, etc., by the private electronic media the same cannot be assumed. When the Election Commisison was Page: 179conscious of the distinction between the Government and the private electronic media as well as the distinction between the advertisements, publication, projecting or publishing the political objects, achievements, etc., which is clearly discernible from the order dated 20-8-1999 under the subject of guidelines for publication and dissemination of results of opinion/exit polls whereby the Election Commission has specifically provided that no result of any opinion poll conducted at any time shall be published or publicised or disseminated in any manner whatsoever in any print or electronic media after 17 hours on 3-9-1999 (5-9-1999) the first day of poll for the General Elections and till the closing of polls in all States i.e 17 hours on 3-10-1999 though it permitted the organisations to be free to conduct exit poll but result of which was prohibited to be published or printed. It further provides as to how and when the said opinion poll is to be conducted and what material has to be disclosed. While providing an explanation it provided that electronic media includes “Radio and Television”, both Government owned and private and terrestrial channels. Dissemination includes publication in any newspaper, magazine or periodical or advertisement in electronic media or circulation by means of any pamphlet, poster, placard or any other document. But while providing for by its letter dated 20-8-99 advertisement on electronic media, no such distinction was made. It provided that it will not be appropriate to allow advertisements by political parties and candidates for the purpose of election campaign in any form in the electronic media which was the decision taken in 1998 and is continued as such for the elections of 1999 with no modification or defining an ‘electronic media’ as was done earlier. It will be reasonable for us to assume that the Election Commission never intended to put any restriction on the private media with regard to advertisements, etc., as stated above specially in view of the fact that no prohibition has been put on the print media. It is accepted at the Bar that majority of this biggest democracy of the world is constituted of uneducated people who have got access only to electronic media to know about the achievements or pit-falls of the political parties or of the merits and demerits of the candidates which is of a recent origin and earlier which was through publicity by loudspeakers, public meetings, etc. Putting the restriction on the electronic media results in depriving the majority of the electrorate of knowing about the people governing them. Assuming the voter to be the sovereign who have given the Constitution to themselves to govern through the mode of representation they cannot be deprived of their right to know about the persons who intend to govern them.

16. In a democracy the basic guarantee required for efficiency of democratic process to dwell is to give the people freedom to participate in the criticism of the State institutions, communication relation to political and electoral process, guarantee of freedom of intercourse of the Constitution, freedom of communication, free comment of Indian People, prohibitions and implied prohibitions by interference with the capacity of the said opinion in the Page: 180Legislative and Executive in the judicial capacities. Freedom of communication is the least in relation to all public affairs and political decision is indispensable to the efficacy of the system of representative Government for which the Constituion of India stands and provides for and it necessarily provides right to vote and elect its representative and sustain the democracy which can be termed as basic to the Constitution of India.

17. In public affairs and in electoral process, political discussions relating to all matters of public affairs and matters in connection with the State affairs are part of right of information of what the political parties promise to give to its electorate and any restriction put not to reach the persons who are required to disseminate and exercise their right would be unreasonable, arbitrary and capricious. Judicial Courts are required to scrutinise such restrictions with scrupulous care with respect to reasonableness, discriminatory nature and an attempt to trench upon the freedom of any nature which is the quint-essential of a human right.

18. We are of the further considered view that the restriction imposed on the electronic media solely on the ground that it involves higher expenditure and would unbalance the fair and free election appears to have been taken on extraneous consideration specially when no such restriction has been put on the other media like press, booklets pamphlets, holding of procession, propagating through loudspeakers, holding public meetings, etc. Restriction has no reasonable nexus with the object especially when there is no prohibition in any other media. No statistics appears to have been collected before coming to such a conclusion though an attempt has been made by both the parties wherein the Counsel for the petitioner stated that one page advertisement in a national newspaper costs more than Rs. 5,00,000/- per day while the Counsel for the Election Commission pointed out that 10 seconds in electronic media costs Rs. 8000/- totally ignorant and oblivious of the number of people accessible through electronic media and the press. Again the question of expenditure to be incurred in the hustings has been taken care of by the Legislature. The field is not open for the Election Commission to provide something contrary to or in addition to the provisions made by the Legislature by putting a limit on the expenditure under Section 77 of the Representation of the People Act, 1951. The Legislature in its wisdom has till date, in spite of being repeatedly pointed out by the Supreme Court, not provided any limit on the expenditure to be incurred other than by the candidate in the hustings. Thus in our considered view the legislation having taken care of expenditure, the Election Commission in exercise of its power of superintendence cannot impose further restrictions in the garb of providing in the Code of Conduct for the expenditure to be incurred by the persons. As observed earlier, except what has been specifically prohibited in law, it is well recognised that all other modes are permitted. There being no prohibition on the expenditure by an organisation/party it would be reasonable for us to assume that persons other Page: 181than the persons prohibited for incurring the expenditure are at liberty to incur expenditure for propagating for or against a person. It is not unknown rather judicial notice of the fact can be taken that innumerable societies have come up in the country which are undertaking the social work of educating the people, contesting the elections as well as pointing out innumerable pit-falls relating to various candidates in the elections.

19. Thus, in our considered view the restrictions imposed suffer from the vice of not only unreasonable restriction and discrimination but are also violative of the fundamental right of the people to do business i.e, Article 19(1)(g) of the Constitution.

20. Providing prohibition for some advertisements in electronic media which has become a part of life reaching out to every nook and corner of the country, accessible to uneducated population, thus denying them what is being allowed to educated person by allowing same acts being done by printed media is an arbitrary discrimination without there being any reasonable classification or reasonable nexus with the object assumed to be attained.

21. The learned Counsel for the respondents vehemently argued, after reading from the material papers a letter dated 8-1-1998, that notice was given to all the parties including the private television channels, etc., to participate in the discussion on 12-1-1998 relating to the subject of coverage of General Elections, 1998. The issue to be considered was fair and balanced coverage of elections, roles to be played by the media to familiarise voters with the election process and actual voting arrangements. We find nothing to infer that either the Election Commission or the people participating in it were ever conscious of any prohibition to be imposed on the private electronic media or the public media relating to campaign, advertisement, etc. Nothing was required to be discussed with respect to do's and don'ts by the political parties or the candidates or the electronic media.

22. The learned Counsel for the respondents further argued by making a reference to the letter dated 27-1-1998 by the Finance Secretary to the Election Commission seeking permission to grant Rs. 2 crores to the parties and Rs. 1 crore to the individual candidate as expenditure on the electronic media. The Election Commission in reply to the said letter informed on 31-1-1998 that it is not advisable to have advertisement at present juncture. Yet we may hasten to add that the Election Commission took no decision that no advertisement would be ever permitted on the electronic media either at that time or in future. The reference to allotment of time-slot of equal opportunity on national media of Doordarshan is not in dispute nor in controversy nor requires any determination.

23. The learned Counsel for the respondents further contended that the writ petition is not maintainable pointing out that writ petition No. 18328 of 1999 was first filed as a public interest litigation and later as a voter and later representing the Telugu Desam Party; therefore, a contradictory stand has Page: 182been taken. The objection is not of substantial nature to throw out the writ petition as not maintainable specially when in the connected writ petition filed by the Gemini Television, the petitioner challenged the prohibition inter alia on the ground that its right to do business has been adversely affected. The learned Counsel for the respondents vehemently argued by referring to the decisions in S.T Corpn. of India v. Commercial Tax Officer AIR 1963 SC 1811, Tata E & L. Co. Ltd. v. State of Bihar AIR 1965 SC 41 and Barium Chemical Ltd. v. Company Law Board AIR 1967 SC 295 that in exercise of power under Article 32 it is only the fundamental rights which can be enforced. Right to do business or freedom of speech is a fundamental right which a citizen can only invoke. We fail to comprehend how the observations made in those judgments are relevant in the context of the facts and circumstances of this case specially when the petitioner himself is a citizen and represents a company and has a right to trade in the name of a company or otherwise apart from the fact that those observations were made while considering the scope of Article 32 whereas it is axiomatic that scope of Article 226 is much wider and this Court can issue writ or order appropriately in the facts and circumstances of each case.

24. The learned Counsel for the respondents further argued by referring to Kanhiyalal v. R.K Trivedi (1985) 4 SCC 628 , AIR 1986 SC 111, P. Nalla Thampy v. Union of India 1985 Supp SCC 189 , AIR 1985 SC 1133 and Election Commission of India v. Shivaji (1988) 1 SCC 277 , AIR 1988 SC 61 that the Election Commission has jurisdiction in exercise of powers under Article 324 to issue instructions where statute is silent. There is no dispute with the proposition of law. But as observed hereinbefore, the statute is not silent either on expenditure or on electronic media or issuance of publication, etc. Reference may be made to Section 126 of the Representation of the People Act, 1951 as amended in 1996 and Section 77 of the Representation of the People Act read with Conduct of Election Rules, 1961 which have already taken care of the expenditure as well as the campaigning on the electronic media relating to election matters. Lastly but not leastly, the learned Counsel for the respondents argued that banning of advertisement, etc., on the electronic media does not relate to election matter. The argument has been noticed only to be rejected. If the campaign or advertisement or apprising the voter of the pit-falls of the political parties or the achievements made by them or necessary information about the candidate to be elected shall not be termed as election matter, we are at a loss to understand as to what else could be the election matter.

25. For the reasons recorded above, the writ petitions are allowed. Electronic media, be it private or otherwise, would not be prohibited from advertisement, campaign by political parties, candidates or anyone else. Thus the impugned orders dated 20-8-1999 and 26-8-1999 are quashed to the extent observed in the judgment. It is made clear that this order does not bar the Election Commission to enforce the provisions of Section 126 of the Representation Page: 183of the People Act prohibiting any campaigning by any means 48 hours before the conclusion of poll. As regards dissemination of results of opinion polls and exit polls, as there is no challenge made to the same before us, we need not express any opinion and we restrain ourselves from expressing any opinion on that. No costs.