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Secretary, Ministry Of Information And Broadcasting v. Gemini Tv (P) Ltd. And Others
Factual and Procedural Background
On 2 April 2004 the Supreme Court of India, while entertaining a special leave petition, issued notice and passed an ad-interim order directing the Election Commission of India to propose “modalities” for regulating political advertisements broadcast over television channels and cable networks during the forthcoming elections. In response, the Election Commission filed an affidavit setting out detailed procedural suggestions. The affidavit was supplied to the Union of India, whose learned Attorney General offered additional comments.
At the subsequent hearing the Court recorded the consensus of counsel—Shri K.K. Venugopal for the Election Commission, Shri Soli J. Sorabjee for the Union of India, and Shri K. Ramakanth Reddy for the respondent cable operators—that the Election Commission’s suggested modalities be incorporated into a judicial order. The present order, issued under Article 142 of the Constitution, therefore formalises those modalities, stays an earlier judgment of the High Court of Andhra Pradesh dated 23 March 2004, and specifies that it shall operate as an interim measure from 16 April 2004 until 10 May 2004.
Legal Issues Presented
- What procedural framework should govern the certification, broadcast, and monitoring of political advertisements on television channels and cable networks during the election period?
- How should the Election Commission’s statutory powers under the Cable Television Networks (Regulation) Act, 1995 and the Representation of the People Act, 1951 be exercised or delegated to ensure timely and effective regulation of such advertisements?
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court grounded its order in the statutory architecture of the Cable Television Networks (Regulation) Act, 1995, highlighting provisions that (a) prohibit transmission of advertisements that violate the prescribed advertisement code (Section 6), (b) authorise seizure and confiscation of equipment for violations (Sections 11–13), and (c) empower authorised officers to prohibit advertisements that may promote enmity or disturb public tranquillity (Section 19). It also referred to Rule 7 of the Cable Television Networks Rules, 1994, which bars advertisements of purely political nature or those inciting disorder.
Recognising the practical impossibility of the Election Commission itself pre-censoring every advertisement nationwide, the Court authorised the Commission to delegate scrutiny functions to District Magistrates (or officers of equivalent rank) pursuant to Section 2(a) of the Cable Act and Section 28-A of the Representation of the People Act, 1951. These officers, acting under the Commission’s “superintendence, direction and control,” may certify, modify, or refuse advertisements, and their decisions are enforceable within twenty-four hours.
The Court then set out a detailed certification procedure: timelines for applications (three days in advance for registered parties/candidates, seven days for others), mandatory submission of the advertisement in electronic form, disclosure of production and telecast costs, and sworn statements regarding sponsorship. It further created a state-level grievance committee system, empowered seizure of equipment for violations, mandated exclusive Supreme Court jurisdiction over disputes arising from the order, and directed the Union of India to fund monitoring activities and publicise the order.
Holding and Implications
INTERIM ORDER ISSUED UNDER ARTICLE 142 OF THE CONSTITUTION
The Supreme Court incorporated the Election Commission’s proposed modalities into a binding interim order effective 16 April 2004 to 10 May 2004, staying the contrary judgment of the Andhra Pradesh High Court. The order:
- Requires advance certification of all political advertisements intended for television or cable broadcast.
- Delegates certification authority to District Magistrates (or equivalent officers) and establishes grievance committees under the Commission’s control.
- Makes compliance with deletion or modification directions mandatory within twenty-four hours.
- Confers exclusive jurisdiction on the Supreme Court for challenges arising from certification decisions.
- Authorises the Election Commission to seize equipment for violations and directs the Union Government to bear monitoring costs and publicise the order.
While the order is expressly interim and time-bound, it immediately imposes a nationwide regulatory framework on political advertising in electronic media, reinforcing the Election Commission’s supervisory powers and ensuring swift remedial mechanisms during the election period. It does not purport to create lasting precedent beyond the specified dates.
Order
1. On 2-4-2004, while issuing notice on the special leave petition and passing an ad interim order, we directed the Election Commission of India to suggest modalities as regards the advertisements to be telecast on the electronic media, by cable operators and television channels. In pursuance thereof, the Election Commission has suggested the modalities on an affidavit giving various suggestions. A copy of the said affidavit was handed over to the Union of India and the learned Attorney General, who has also made a few suggestions. Shri K.K Venugopal, learned Senior Counsel appearing for the Election Commission of India, Shri Soli J. Sorabjee, learned Attorney General, and Shri K. Ramakanth Reddy, learned counsel appearing for the respondent cable operators, agreed that these modalities, as suggested by the Election Commission of India, may be made part of the order of the Court.
2. Before we pass the order, it will be worthwhile to notice certain provisions of the Cable Television Networks (Regulation) Act, 1995 (for short “the Act”), as amended from time to time, and the Rules framed thereunder. The object of the Act is to regulate the operation of the cable television network in the country. Section 6 of the Act provides that no person shall transmit or retransmit through a cable service any advertisement unless such advertisement is in conformity with the prescribed advertisement code. Section 11 of the Act provides that if any authorised officer has reason to believe that the provisions of the Act have been or are being contravened by any cable operator, he may seize the equipment being used by such cable operator for operating the cable television network. Section 12 of the Act provides for confiscation of the equipment in the event of any violation of the provisions of the Act. Similarly, Section 13 of the Act also provides for seizure or confiscation of the equipments and punishment. Section 16 further provides for punishment for contravention of the provisions of the Act. Section 19 lays down that an authorised officer, if he thinks necessary or expedient so to do in the public interest, may, by order, prohibit any cable operator from transmitting or retransmitting any advertisement which is not in conformity with the prescribed programme code and advertisement code and it is likely to promote enmity on grounds of religion, race, language, caste or community or any other grounds whatsoever, disharmony or feelings of enmity, hatred or ill will between different religious, racial, linguistic or regional groups or castes or communities or which is likely to disturb public tranquillity. Section 22 of the Act empowers the Central Government to frame rules to carry out the provisions of the Act. The Central Government in exercise of the powers conferred on it by Section 22 of the Act is empowered to make rules which are known as the Cable Television Networks Rules, 1994 (for short “the Rules”). Rule 7 of the Rules provides that where an advertisement is carried in the cable service it shall be so designed as to conform to the laws of the country and should not offend the morality, decency and religious susceptibilities of the subscribers. Sub-rule (2), inter alia, provides that no advertisement shall be permitted which derides any race, caste, colour, creed and nationality; is against any provision of the Constitution of India; and tends to incite people to crime, cause disorder or violence or breach of law or glorifies violence or obscenity in any way. Sub-rule (3) further provides that no advertisement shall be permitted the objects whereof are wholly or mainly of religious or political nature; advertisements must not be directed towards any religious or political end. It is in this background, we now propose to pass the following order:
Every registered, national and State, political party and every contesting candidate proposing to issue advertisement on television channel and/or cable network will have to apply to the Election Commission/designated officer (as designated by the Election Commission), not later than three days prior to the date of the proposed commencement of the telecast of such advertisement. In case of any other person or unregistered political parties, they will have to apply not later than seven days prior to the date of the telecast. Such application shall be accompanied by two copies of the proposed advertisement in electronic form along with a duly attested transcript thereof. In case of first phase of elections, the application shall be disposed of within two days of its receipt and until decision thereon is taken, our order dated 2-4-2004 shall apply. In case of subsequent phase of election, the application shall be disposed of within three days of its receipt and until the decision thereon is taken, our order dated 2-4-2004 shall apply. While disposing of such applications, it will be open to the Election Commission/designated officer to direct deletion/modification of any part of the advertisement.
The application for certification shall contain the following details:
(a) the cost of production of the advertisement;
(b) the approximate cost of proposed telecast of such advertisement on a television channel or cable network with the break-up of number of insertions and rate proposed to be charged for each such insertion;
(c) it shall also contain a statement whether the advertisement inserted is for the benefit of the prospects of the election of a candidate(s)/parties;
(d) if the advertisement is issued by any person other than a political party or a candidate, that person shall state on oath that it is not for the benefit of the political party or a candidate and that the said advertisement has not been sponsored or commissioned or paid for by any political party or a candidate; and
(e) a statement that all the payments shall be made by way of cheque or demand draft.
3. We find that Section 2(a) of the Act defines “authorised officer”, within his local limits of jurisdiction, as: (a) District Magistrate; (b) Sub-Divisional Magistrate; or (c) Commissioner of Police. Similarly, Section 28-A of the Representation of the People Act, 1951 provides that the Returning Officer, Assistant Returning Officer, Presiding Officer, Polling Officer and any other officer appointed under this part and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election and, accordingly, such officer shall during that period, be subject to the control, superintendence and discipline of the Election Commission.
4. Since it is not physically possible for the Election Commission to have a precensorship of all the advertisements on various cable networks and television channels, it has become necessary to authorise the Election Commission to delegate its powers in this behalf to the respective District Magistrates of all the States or Union Territories, not below the rank of a Sub-Divisional Magistrate or a member of the State Provincial Civil Service. This may be done by a general order issued by the Election Commission. These officers shall act under the control, superintendence and discipline of the Election Commission. The Election Commission in its turn may delegate its powers to the Chief Electoral Officer of each State or the Union Territories, as the case may be.
5. The Chief Electoral Officer of each State or Union Territory may appoint a committee for entertaining complaints or grievances of any political party or candidate or any other person in regard to the decision to grant or to refuse certification of an advertisement. The Committee so appointed shall communicate its decision to the Election Commission.
6. The Committee so constituted will function under the overall superintendence, direction and control of the Election Commission of India.
7. The decision given by the Committee shall be binding and complied with by the political parties, candidates or any other person applying for advertisements in electronic media subject to what has been stated above.
8. The comments and observations for deletion or modification, as the case may be, made, shall be binding and complied with by the political party or contesting candidate or any other person concerned within twenty-four hours from the receipt of such communication and the advertisement so modified will be resubmitted for review and certification.
9. We may clarify that provisions of Section 126 (sic 125) of the Representation of the People Act, 1951, shall apply to the advertisement covered by this order.
10. If any political party, candidate or any other person is aggrieved by the decision taken either by the Committee or by the designated officer/Election Commission, it will be open for them to approach only this Court for clarification or appropriate orders and no other court, tribunal or authority shall entertain any petition in regard to the complaint against such advertisement. This order shall come into force with effect from 16-4-2004 and shall continue to be in force till 10-5-2004.
11. This order is being issued in exercise of the powers under Article 142 of the Constitution of India and it shall bind all the political parties, candidates, persons, group of persons or trusts who propose to insert the advertisement in the electronic media, including cable networks and/or television channels as well as cable operators.
12. It will be open to the Election Commission to requisition such staff as may be necessary for monitoring the telecast of such advertisements. Where the Election Commission is satisfied that there is a violation of this order or any provisions of the Act, it will issue an order to the violator to forthwith stop such violations and it will also be open to direct seizure of the equipments. Every order shall be promptly complied with by the person(s) on whom such order is served.
13. The funds to meet the cost of monitoring the advertisements should be made available to the Election Commission by the Union of India. Adequate publicity of this order shall be given by the Union of India on the electronic media and through print media.
14. This order is in continuation of the order passed by this Court on 2-4-2004 and shall remain in operation as an interim measure till 10-5-2004.
15. Subject to the aforesaid order, the judgment of the High Court of Andhra Pradesh dated 23-3-2004 shall remain stayed. This order is passed not in derogation of but in addition to the powers of the Central Government in regard to the breach of the provisions of the Act.
16. List after the ensuing summer vacation.
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