SINCE the Modi government came to power in 2014, pro-BJP newspapers and periodicals have reaped a rich bounty from the central and state governments, from local bodies and public-sector undertakings.

They are flooded with advertisements, regardless of their circulation or importance. All this is at the expense of established dailies and periodicals and in gross abuse of power and public funds. At issue are the fundamental rights to equality and to freedom of speech and expression.

In his classic Constitutional Law of India, H.M. Seervai refuted the state’s assumption that since it is the custodian of public funds, it can place advertisements in journals as it deemed fit, and withhold them from the ones it disliked.

Government ads shouldn’t be used as a weapon against the press.

As far back as in 1884, the US Supreme Court ruled: “The United States does not and cannot hold property, as a monarch may, for private or personal purposes. All the property and revenues of the United States must be held and applied, as all taxes, duties, imposts and excises must be laid and collected, ‘to pay the debts and provide for the common defence and general welfare of the United States’.”

Later, the court said: “The United States holds the title to the property in question as it holds all other property, for public purposes and not for private purposes.”

Recently, Indian supreme court judges expressed their displeasure at state ads which projected the chief ministers of states and detailed at public expense their splendid achievements to a captive audience.

In 1981, Eenandu, a mass circulating Telugu daily, successfully challenged in the Andhra Pradesh high court a government order laying down guidelines for grant of ads to the press by government departments and public-sector undertakings.

The court observed that the government raised crores of rupees as revenue, and as the government was the guardian of state finances it was its duty to use the revenue for the benefit of all concerned.

The government spent considerable funds on advertisements, and “it should not use the power over such large funds … to muzzle the press or as a weapon to punish newspapers which criticise its policies and actions.

“It has to use the funds in a reasonable manner consistently with the object of the advertisement viz. to educate and inform the public about the activities of the government.” The offending guidelines were quashed.

In 1954, the first press commission opined that “the liberty and freedom to place advertisements wherever he likes, which a private advertiser enjoys, cannot be conceded to the government which is a trustee of public funds and, therefore, bound to utilise them, without discrimination, to the best advantage of the public”.

It added “any other method of placing advertisements is likely to carry with it two defects. It would be an unfair use of public funds. It would also render the government open to the charge that the power of placing advertisements is being exercised against papers whose editorial policy is against the government for the time being; or as a patronage to those papers which support it.”

This was the case “even if, in respect of the government’s responsibility for the use of public funds, the legislature … takes no objection to such expenditure, the danger involved in the latter is so overwhelming that, from the point of view of maintaining independent journalism, we consider that advertisements should be issued by the government only in conformity with the principles enunciated….”

The legislature, in which the government commands a majority, is no check on abuse of power.

The Press Cou­ncil of India has built up case law on improper grant of ads by the state. One notable case laid down the rules comprehensively. It concerned The Tribune published from Chandigarh. It emphasised that, first, in the matter of distributing ads, a government’s discretion was not absolute. It was conditional on the ads not being placed or withheld for the object of influencing a particular paper’s editorial policy or as a means of punishment for persisting in an editorial policy not meeting its approval.

Second, the withdrawal of ads, since they attempted to influence editorial policy, constituted an invasion of press freedom. The government is a trustee of public funds and is bound to use them without improper discrimination.

Withholding of ads by the government is a threat to press freedom, if this be for publishing matter not liked by the government, or if it attempts to coerce the editor to toe the line of the government, or by way of unlawful discrimination at the executive level, or by way of punishment for the editorial policy of a paper or criticism of its policies.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, June 3rd, 2017