Government Advertisements and

Freedom of Press: Examining the

Rajasthan Patrika case

by CCG NLU Delhi

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Rajasthan Patrika, a highly popular newspaper, has seen a sharp decline in

government advertisement allocation over the last year. According
to reports, the alleged reason for the decline was the political ideology of
the Patrika, which did not favour the state government. The state
government however claimed that the decline was necessary to correct the
existing imbalance in advertisement allocation. The “fight for survival” drew
to an end earlier this month when the Supreme Court ordered the
Rajasthan government to allocate a higher percentage of advertisements to
the Patrika.

Advertisement allocation is necessary for newspapers to reduce their cost

of production. Declining advertising revenues would force publishers to
pass on the cost to readers, which would negatively impact circulation. This
practice has been held to be against the ‘Freedom of the Press’.

While not explicitly enumerated, Freedom of the Press is a constitutionally

protected right under Article 19 of the Constitution (Romesh Thappar vs.
State of Madras). International instruments like the American Convention
on Human Rights prohibit ‘indirect’ means of censorship (Article 13.3). The
Office of the Special Rapporteur for Freedom of Speech and Expression
(Inter-American Commission on Human Rights) in the Principles on the
Regulation of Government Advertising and Freedom of
Expression mentions curbing advertisement allocation as an ‘indirect’
means of censorship.

Like Rajasthan Patrika, Ushodaya Publications, a Supreme Court case,

dealt with a similar set of facts in 1981. In Ushodaya Publications vs.
Government of Andhra Pradesh, the petitioners claimed that the
‘Advertisement Procedure’ stipulated in the Government Order served as a
restraint on the Freedom of Speech and Expression under Article 19 of the
Constitution. The Order specified certain production and circulation
standards, which the publishers considered restrictive. The petitioners also
claimed that absence of a “right to notice and hearing…a machinery for
redress or correction of an adverse decision by way of appeal or revision”
rendered the system vague and arbitrary. The courts however held that the
mechanism was not unconstitutional and merely streamlined the
advertisement allocation process through the Director of Information and
Public Relations. The discretion of the Director was not discriminatory since
advertisements were ‘commercial speech’. Advertisement allocation was
not considered integral to the Freedom of Press.

The new DAVP Policy

Roughly three decades later, the Freedom of Press related concerns raised
in Ushodaya remain unaddressed.

The rules governing advertisement allocation are over-looked by the

Directorate of Advertising and Visual Publicity (DAVP). The DAVP is a
nodal agency through which government bodies streamline the
advertisement allocation process. In June of 2016, the Information and
Broadcasting Ministry published a new policy for the DAVP , the National
Advertisement Policy . Among other concerns, the Policy was introduced
to “focus on transparency and equity in release of government ads”.

The Policy allocates ads to ‘small’, ‘medium’ and ‘big’ newspapers, based
on their circulation numbers. Following a ‘scorecard’ system, the higher
number of points a newspaper has, the greater percentage of ads it will be
allocated. Rajasthan Patrika happens to be an ‘empanelled’ newspaper
which would score highly. (It is amember of the Audit Bureau of Circulation
and is one of the mostwidely read papers in the country, which leads us to
believe that it must be widely circulated.)

The process of ‘empanelling’ is multi-pronged and extensive. With six

criteria, ranging from approval from the Audit Bureau of Circulation and the
Registrar of Newspapers of India to an annual subscription payment to the
Press Council of India, only select newspapers are empanelled. The
policy faced criticism from small and medium enterprises for favouring
larger newspapers. The renewed empanelling process would seemingly
favour existing members of the ABC/RNI.

Criticism of the Policy

In addition to the criticism faced by smaller newspapers, the policy has a

few inherent flaws. Similar to the Government Order in the Ushodaya case,
the DAVP Policy also does not have a redressal mechanism. The
‘minimum print area’ criterion under Clause 11 of the Policy is vaguely
reminiscent of Bennett Coleman vs. Union of India where the permissible
number of pages were regulated under the Newsprint Policy of 1972-73.
The courts in this case held the limit on the number of pages to be
unconstitutional. ‘Minimum print area’ could severely restrict circulation of
papers, as well.

Several of the clauses rely on being vetted by the Audit Bureau of

Circulation (ABC) or Registrar of Newspapers for India (RNI). These
agencies audit the circulation of and verify the legitimacy of the
newspapers. The ABC also requires a newspaper to be registered under
the RNI to be considered for membership at the bureau. However, reports
of fake newspapers/journals registered by the RNI were afloat last year.
These ‘fake’ publications, which had either printed the same content
multiple times or had not printed at all, were being allocated government ad
revenue. A huge discretion between the number of newspapers circulated
in the districts and those empanelled by the DAVP was found. Amidst
allegations of corruption, DAVP and RNI’s conduct renders the whole
system of ‘empanelling’ questionable.

The ABC Manual paints a murky picture as well. Clause 14.7 states that
non-submission of books and records “will lead to non – consideration for
certification”. While in the same document, Article 5A gives ABC the
authority to revoke membership in the event of non-submission of
circulation figures. Similarly, in the case of the ‘fake’ publications, the RNI
admitted they were ‘not empowered to take action’.

Conclusion

‘Empanelling’ under the DAVP is a restrictive practice and would lead to

curtailing freedom of speech and expression. An ‘indirect’ means of
censorship, the multi-pronged empanelment process is subject to
corruption and arbitrariness. The DAVP Policy renders the allocation
system vulnerable and open to misuse. The need of the hour is a far more
coherent and transparent set of guidelines.