The Calcutta High Court has delivered a landmark judgment in the case Ganashakti & Anr. vs State of West Bengal & Ors. that has wide ramifications where discrimination against sections of media by the government of the day is concerned. It has also raised several important questions regarding media ownership and the role of media in disseminating information originating from the government to the public. Lastly it has also clarified several issues regarding the DAVP guidelines relating to issue of advertisements to media by state and Central government and their undertakings.

Central and state governments spend large sums on advertising their various schemes and bringing their achievements before the public. Since there is always a chance that the government of the day would indulge in bias and favouritism by issuing advertisements only to such media publications that are either favourably disposed towards it or those that are directly or indirectly owned and operated by people close to the ruling party, there exists a scheme whereby the said governments are mandated to spread their advertising spend in a particular manner so as to support small and medium newspapers and magazines.

This case arose because the West Bengal government issued an order in 2013 banning issuance of government advertisements to Ganashakti, a Bengali language daily, on the premise that since the daily was the mouthpiece of the Communist Party of India (Marxist) (CPI-M) and was owned by the party, any government advertisement issued to it would amount to state funding of a political party and would hence be improper.

Aggrieved by this, the daily filed a writ in the Calcutta High Court. The writ argued that the daily newspaper was registered with the Registrar of Newspapers in India (RNI) and was submitting all relevant information to the authority as required by law. It was also empanelled with the Directorate of Advertising and Visual Publicity (DAVP), the nodal agency through which the government is to issue advertisements to the media and that decides the rates at which such advertisements can be issued.

There were four main points before the Court – first, whether by denying advertisements to a newspaper, the State government was infringing upon Article 19 of the Constitution that guarantees freedom of speech and expression which includes freedom of press; second, whether Ganashakti was in fact an organ of the CPI-M; third, whether newspaper ownership was a factor in government issuing advertisements to it and fourth, whether the government has discretionary powers in issuing advertisements or whether it has to follow DAVP guidelines.

While examining whether denial of advertisements amounted to infringement of Article 19, the Court citedSakal Papers (P) Ltd vs Union of India and ors where it was pointed out that “freedom of speech and expression are the foundation of all democratic organisations and are essential for the proper functioning of the processes of democracy.Freedom of speech and expression includes freedom of propagation of ideas and that this freedom is ensured by the freedom of circulation.

The right to freedom of speech and expression carries with it the right to publish and circulate one&’s ideas, opinions and views with complete freedom by resorting to any available means of publication, subject again to such restrictions as could be legitimately imposed under clause (2) of Article 19. The right extends not only to the subject a newspaper is entitled to circulate but also to the volume of circulation. Freedom of speech could not be restricted for the purpose of regulating the commercial aspect of authorities of the newspapers.”

It also cited Ushodaya Publication Pvt. Ltd vs Government of Andhra Pradesh & ors, where a full bench of the Court observed that though the expression ‘freedom of press’does not occur in Article 19(1) (a), freedom of press is a part of the right of free speech and expression and is covered by Article 19(1) (a). It has also observed that the freedom of circulation of a newspaper is necessarily involved in freedom of speech and expression and hence enjoys the protection of Article 19 (1) (a).

Finally, the Court cited Bennett Coleman Co vs Union of India & Ors where it was held that “publication means dissemination and circulation. The press has to carry on its activity by keeping in view the class of readers,the conditions of labour, price of material, availability of advertisements, size of paper and the different kinds of news comments and views and advertisements which are to be published and circulated.

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 advertisement is restricted, price of paper goes up. If the price goes up circulation will go down.This was held in Sakal Papers case to be the direct consequence of curtailment of advertisement.

The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by the Court to be an integral part of the freedom of speech and expression. This freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom.

A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under Article 19(1) (a) on the aspects of propagation, publication and circulation.”In the same case,the Court also opined that “the loss on advertisements may not only entail the closing down but also affect the circulation and thereby impinge on freedom of speech and expression.”

Having established this, the Court now examined whether Ganashakti was an organ of the CPIM. It said that the government pleader had relied on the official website of the newspaper to claim that Ganashakti was an organ of the CPI-M. But the Court categorically said “ownership of the newspaper is not a criteria to deny advertisements by the State. The newspaper concerned is not a mouthpiece of any political party. It does not claim to be a mouthpiece of CPI-M. Others may consider it as a mouthpiece. On the basis of the materials made available to me, I am not in a position to bring myself to return a finding that the first writ petitioner is an organ of CPI-M” (emphasis mine).

In this connection, it would serve to examine the DAVP policy regarding issuance of advertisement to newspapers/journals. Clause 1 of the same clearly states that in releasing advertisements it does not take into account the political affiliations or editorial policies of newspapers/journals. In a note to this clause it says that only house journals, souvenirs and annual publications are barred from receiving government advertisements.

Now, Ganashakti cannot be called a house journal of the CPIM by any stretch of imagination. The very fact that it is empanelled with DAVP proves that it is not the ‘house journal’or mouthpiece of the CPI-M. In fact, the advocate for the petitioner had pointed out the official mouthpiece of the party was People&’s Democracy.

In clause 2, the DAVP guidelines also say that government advertisements are not intended to be financial assistance to newspapers/journals. DAVP follows a policy of empanelment whereby government advertisements are issued to newspapers/journals as per their stated publishing goals, their regional and special interest readership and their circulation. It has a declared policy where each category of newspapers/journals meeting its criteria is to get a certain percentage of the advertising spend without discrimination.

Finally, the Court examined whether the government had discretion in deciding which newspapers it will issue advertisement to or whether it had to follow DAVP guidelines in this matter. The Court first examined the West Bengal government order barring issue of advertisements to Ganashakti.It was of the opinion that the order was just a policy decision and it could not be construed as law within the meaning of Article 13 of the Constitution.It went on to say that “Political affiliation per se would not disentitle a newspaper from publishing itself. The nature of ownership of a newspaper cannot be a criteria to deny advertisements by a Government.This contention of the State Government can be looked into from a different angle.

The Central Government as well as other State Governments do not consider the first writ petitioner to be a mouthpiece of any political party. Its so-called political affiliation is not an impediment to the Central Government or to the other State Governments to release advertisements to it. The so-called restrictive populace which subscribes to the first writ petitioner is again no ground for the Central Government and the other State Governments to deny advertisements to it. In such circumstances I find no merit in the contentions of the State Government that the first writ petitioner has to be denied advertisement on the ground of policy of the first writ petitioner,its restrictive circulation and its political affiliation.”

The Court noted that in Sushil Choudhary & Anr vs State of Tripura and ors it was held that “a policy of the Government to allot 24 per cent out the total 30 per cent of advertisement to one daily and the remaining 6 per cent to other dailies belonging to the same class to be violative of Articles 19(1) (a) and Article 14 of the Constitution of India.”

The order went on to say: “There are two other grounds which are cited in the decision of the State Government dated July 12, 2013 to deny advertisements to the first writ petitioner. The first amongst them being that the Government as a buyer has a right to decide which vendor receives it business. The State Government however has no right to discriminate amongst similarly situate. The first writ petitioner has to be considered in the same category as that of other newspapers in the category. The decision to award an advertisement or not must be taken by the State Government on the same parameters as that it decides to award it the other newspapers in the same category as that of the first writ petitioner. The second ground is that the rate submitted by the first writ petitioner is ambiguous, contradictory and confusing.

To avoid controversy on this issue, I am of the view that, it would be in the interest of justice to allow the writ petitioners to quote its rates afresh to the State Government. If the State Government finds any ambiguity therein, it would be open to the State Government to seek clarification and for the writ petitioners to clarify the same. In view of the discussions above, the decision dated July 12, 2013 of the State Government is set aside. The State authorities will consider and grant the first writ petitioner advertisements as that of the other newspapers in the category in which the first writ petitioner is, in accordance with law.”

Governments the world over indulge in soft practices to choke the flow of funds to organisations having a political view different from theirs. But the blatant manner in which the West Bengal government wanted to curtail freedom of press by denying advertisements of Ganashakti was improper. A newspaper disseminates information to its readers. The state government would in fact benefit by having its achievements read by what it terms a “restrictive readership.” In any case, the judgment clearly establishes that the government has no discretion in issuing advertisements to newspapers/journals and it has to go by the stated policy of DAVP and other norms governing the matter.

The writer is a freelance contributor