Restriction on displaying political advertisements during Model Code of Conduct does not violate Article 19(1)(a), Article 19(1)(g): Delhi HC

The Delhi High Court has held that restriction on displaying political advertisements in public spaces during the period of Model Code of Conduct before elections does not violate Article 19(1)(g) or Article 19(1)(a)of the Consitution of India.

The Judgment was passed by a Single Judge Bench of Justice Sanjeev Sachdeva in a petition by companies (Petitioners) which engaged in providing advertising spaces in the city.

After participating in a tender process, the petitioners had secured a long-term licence for advertising rights for a period of approximately 10 years in the city.

The Petitioners' grievance was dirceted against letters by Election Commission of India and the Delhi Metro Rail Corporation, closing the Petitioners' right to display/paste any political advertisement at a space provided on lease for commercial advertisement during the period of Model Code of Conduct.

The Petitioners submitted that the Election Commisison had, time and again, iterated that there was no ban or prohibition on political parties from putting up their advertisement on commercially authorised sites.

The Petitioners submitted that they have made their bids in the tender after taking into account the potential substantial earnings from political advertisements during the election period, considering that there are 4-5 elections in the span of 10 years.

It was thus stated that if the restriction was implemented, the Petitioners would suffer grave financial loss.

The Petitioners added that as per clause 9.0 (e) of their agreement with the DMRC, advertisement during the period of Model Code of Conduct was allowed.

The Petitioners thus submitted that the direction was in violation of their fundamental right of freedom of speech and expression as guaranteed by Article 19(1)(a) of the Constitution of India and also their fundamental right to carry out any trade or business as guaranteed by Article 19(1)(g) of the Constitution of India.

The Election Commission, on the other hand, informed the Court that during the general elections of Lok Sabha- 2019, several complaints were received regarding display of advertisements containing photographs of certain political leaders at various stations of Delhi Metro as well as inside the coaches.

The Commission, therefore, prohibited such advertisements when the Model Code of Conduct was in force on the ground that it should not appear to the public that the Government was supporting or endorsing any particular political party by permitting display of its political advertisements on Government Properties, the Court was further informed.

The Commission further justified that there was a direct nexus between the direction and the object sought to be achieved i.e. free, fair and transparent election.

The Commission contended that the direction was in the interest of free, fair and transparent elections to the legislative assembly of Delhi and the "pure commercial interest" of the Petotioners were subject to reasonable restrictions.

After hearing the parties, the Court discussed the Election Commission's Manual of Model Code of Conduct (For the guidance of political parties and candidates) at length.

It noted that Clause 12.3.1 of the Code prohibited the use of space in public places/public properties like railway station, government dispensaries, bus stand, airports, etc. for political advertisement during the election period as part of the election campaign.

It further noted that Clause 12.3.2 provided for imposition of conditions on political advertisement during the period of Model Code in the contracts between Government Departments, Local Authorities, joint sector undertakings etc. and private advertising agencies.

Clause 12.3.4 further stated that in case there was no specific provision in the bye-laws of the PSUs or in the agreement with the advertisement agencies to whom spaces have been let out, the said PSUs were instructed to add a paragraph in the agreement prohibiting political advertisement during the period of Model Code of Conduct.

In view of the above, the Court opined that the directions by the Election Commission and DMRC were in consonance with the Model Code of Conduct especially clause 12.3.4.

The Court further opined that since the licence was granted for displaying advertisements of third parties, the Petitioners' claim of violation of Article 19(1)(a) had no merit.

"Petitioners are merely service providers who have entered into contract with the respondent No.3 and hired commercial spaces for display of advertisement by the third parties. No fundamental Right of freedom of speech and expression of the petitioners is affected by the said restrictions being imposed on 3rd party advertisers or persons who seek to use the said spaces for political advertisement."

The objections with respect to violation of the Petitioners' freedom to carry out any trade or business under Article 19(1)(g) was also rejected.

The Court stated that there was no absolute restriction on the Petitioners' right to carrying on any business or trade and the directions and the restriction was limited to political advertisements for the period of Code of Conduct.

"The Model Code of Conduct would be applicable only for a period of about one month. The contract of the petitioners is stated to be for a period of over 10 years. In the span of over 10 years, as per the petitioners, about 4 to 5 elections would be held. This would imply that the petitioners would be prohibited for a period of about 4 to 5 months, when the Model Code of Conduct would be in-force, in a span of 10 years from displaying political advertisement."

The Court thus concluded that the restriction was not unreasonable keeping in view the object sought to be achieved by the directions i.e. free, fair and transparent election and would satisfy the test of reasonable restrictions as contemplated in Article 19 (6) of the Constitution of India.

It added,

".. if one were to balance equities, on the one side there is pure commercial interest of private individuals and on the other side is the general public interest of holding free, fair and transparent elections. The balance clearly tilts in favour of the general public interest."

Lastly, the Court also took note of Article 324 of the Constitution of India which granted the powers to superintend, direct, control and conduct of elections to the Parliament and the State Legislature etc to the Election Commission of India.

In view of the above, the Court concluded that there was no merit in the petition.

Since the Model Code of Conduct has already been imposed in Delhi, the Court granted 24 hours to the Petitioners to remove the political advertisements that were in breach of the directions issued by the Election Commisison.

The Petitioners were represented by Senior Advocate Sudhir Nandrajog with Advocates Ashish Mohan, Akshit Mago.

Election Commission was represented by Advocates Anjana Gosain, Himanshi.

DMRC was represented by Advocates Tarun Johri, Ankur Gupta.

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