Ban on Netaji’s Picture: Judicial Activism or Overreach

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In yet another landmark judgment given by the bench of Ranjan Gogoi & N.V. Ramana JJ., the Supreme Court restrained ruling parties from publishing photographs of political leaders or prominent persons in government-funded advertisements, which was criticized by a lot of political groups pronouncing it to be judicial overreach. Well let us have a look on whether these allegations really true? Has judiciary over stepped its boundary this time, the so called ‘lakshmanrekha’, which separates its function with that of the other two organs of the government.

In their contentions, the petitioners conceded to the importance of government advertisements in informing the citizens regarding the welfare & progress measures. However, it was contended that in garb of communicating the people, parties try to create a personality cult for a political mileage, thereby portraying the individual responsible for the achievements and progressive plans out of tax payer’s money.

The Hon’ble Supreme Court in light of the above case established a Committee headed by Prof. N.S. Madhava Menon, namely the Menon Committee, which gave suggestions regarding the guidelines that need to be followed, which the bench accepted fully with a few modifications i.e. (i) instead of a complete ban on publishing of photos of all individuals, it exempted the PM, President and CJI and allowed their pictures, provided that they personally allow it, thus, in a way, making them also accountable for the publication and (ii) rejected the suggestion of appointment of ombudsman & embargo on advertisements on the eve of elections.

Several political parties including the Shiv Sena, heavily criticized the judgment saying it to violate the basis of democracy and as an insult to the State government. It went on to say that we accept the decision and bow saying ‘Yes, Maharaj! We accept it!’ and said that if we question this decision, there would be a contempt proceeding initiated, and put forth the question that, ‘then why do we rave about democracy and take pains in sun or rains to constitute assemblies… on one hand, we sing paeans to democracy and on the other, the courts deliver orders which break the very back of democracy.

The Tamil Nadu government also filed a review petition, stating that such a decision is contrary to the federal structure i.e. Centre and the State are not kept on an equal level and that it gives a message that Centre is above the State. Further, it went on to say that this is a policy decision and the judiciary should not intrude in these matters.

Also, it must be highlighted that many parties have pointed out that by setting up its own expert committee under Prof. N. R. Madhava Menon and accepting majority of its suggestions, brought out under the title Government Advertisements (Content Regulation) Guidelines 2014, the Supreme Court adopted the functions of both the law making body and executing authority.

Further, the authority of the court was questioned as to give guidelines on public spending, a matter which completely falls within the ambit of the Parliament. And if the Supreme Court decides this today, it was critiqued; that tomorrow it can go to the extent of forcing not to spend the funds on defense of the nation and instead, focus on poverty alleviation, else it would be constitute as a misplacement of public funds in the eyes of law.

From reading and analyzing the above, it might seem like the apex judiciary has crossed all of its boundaries, turned upside down the entire federal system and left to dry the democratic values. But this is not the case. This judgment is a perfect example of judicial activism and instead gives a very strong message that the Indian judiciary is still there for protection of the rights of people.

Firstly, the ultimate test of all the State activities is reasonableness and fairness under Article 14 of the Constitution of India, however, the deployment of public funds in any Government activity that is not connected with a public purpose would justify judicial intervention. Moreover, Article 38 and 39 of the Constitution, enjoin upon the State, a duty to consistently provide social and economic justice to the millions of the people who are still behind an artificially drawn poverty line, and by injunction or stopping the unproductive expense from public fund would be the best way to achieve it and thus Supreme Court’s intervention is warranted.

Secondly, the present policy decision is indisputably something which comes under the ambit of the Parliament and the judiciary’s intervention whatsoever is wrong and cannot be justified, however, in a situation where the field is open and uncovered by any government policy to guide and control everyday governmental action, surely, in the exercise of jurisdiction under Article 142 of the Constitution, the parameters can be laid down by this Court which are consistent with the objects enumerated by any of the provisions of Part IV. Such an exercise would be naturally time bound i.e. till the Legislature or the Executive, as the case may be, steps in to fulfill its constitutional role and authority by framing an appropriate policy. Thus, even this step by the Court is within the scope and perfectly justified.

Thirdly, in pursuance of Article 142, the Supreme Court can very well lay down guidelines and the issuance of guidelines should not be mistaken as with making laws for the country. These guidelines are mere suggestions which would prevail till the time the Legislature makes a law of the land.

The Supreme Court also made it abundantly clear that the present directions issued under Article 142 of the Constitution may not be considered as comprehensive, and there might be several aspects of the matter which may have escaped the attention of the Court at this stage. In this regard, they clarified that there may be fallacies and gaps, and gave the executive the due importance and respect, stating, “the gaps if any, we are confident would be filled up by the executive arm of the government itself inasmuch as the attainment of constitutional goals and values enshrined in Part IV of the Constitution is the conjoint responsibility of the three organs of the State i.e. legislative, executive and the judiciary”.

Thus, making clear the stance of the Supreme Court, it is hereby concluded that the Court acted well within its ambit, and the present case is not one of judicial overreach but activism.

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