Madras High Court
Case BriefsHigh Courts


Madras High Court: A Division Bench of Munishwar Nath Bhandari, CJ and S. Ananthi, J. directed the State Government to ensure that the photographs of both the President and Prime Minister of India are published in all the advertisements – whether in print or electronic media, in relation to the Chess Olympiad in adherence with the directions laid down by the Supreme Court in Common Cause v. Union of India, (2015) 7 SCC 1. These directions were given when it was brought to the notice of the Court that the photograph of only the Chief Minister of the State was published in all the media in the advertisements barring the photographs of the President and the Prime Minister of India, for an international event i.e., 44th Chess Olympiad scheduled to be held in Chennai, India from 28-07-2022 to 10-08-2022.

The petition was filed under Article 226 of the Constitution of India to declare the use of sole photograph of the Chief Minister of the State of Tamil Nadu in advertisements/promotions of the 44th Chess Olympiad as illegal, arbitrary and in violation of the directions issued in the Common Cause case (supra) and State of Karnataka v. Common Cause, (2016) 13 SCC 639 and consequently, issue direction to respondent 1 to advertise/promote the 44th Chess Olympiad in terms of the directions issued by Supreme Court in Common Cause v. Union of India, (2015) 7 SCC 1 and include the photographs of the Prime Minister of India and President of India for the said advertisement/promotion.

The Court refuted the submissions given by the State for not including photographs of PM and President in the advertisements. The Court noted that the reason assigned by the State Government that the Presidential elections were not concluded and, therefore, the photograph of the President of India was not published, cannot be accepted, because the advertisements were issued even after the declaration of the result of the Presidential elections without the photograph of the President of India. The excuse taken by the respondents for non-publication of the photograph of the Prime Minister due to receipt of the consent from his office belatedly is also not acceptable. The photograph of the Prime Minister was required to be published even if he could not have inaugurated the event. What has to be noted here is that despite Parliament session, the Prime Minister has decided to inaugurate the function, considering the significance of the event at the international level.

The Court further noted that considering the national interest and the directives of the Supreme Court in the case of Common Cause v. Union of India, (2015) 7 SCC 1, it should be ensured that even if the dignitaries like the President or the Prime Minister of India accept the invitation for an international event or not, the advertisements should contain their photographs, inasmuch as they represent the country at the international level.

Thus, the Court directed the State Government to ensure that the photographs of both the President and Prime Minister of India are published in all the advertisements – whether in print or electronic media, in relation to the Chess Olympiad.

The Court further directed the district administration to ensure that no damage or destruction is caused to any of the advertisements published containing the photographs of the President and the Prime Minister, apart from the Chief Minister, and if any such activities are reported, strict action to be taken against such personnel.

[R Rajesh Kumar v. State of Tamil Nadu, WP (MD) No. 16887 of 2022, decided on 28-07-2022]

Advocates who appeared in this case :

Mr. Aditya Dewan for Mr. V.R. Shanmuganathan, for the Petitioner;

Mr. R. Shanmugasundaram, Advocate General assisted by Mr. P. Thilakkumar, Government Pleader and Ms. Shakeena, Government Advocate for R1 Mr. Veera Kathiravan Additional Advocate General assisted by Mr.P. Thilakkumar, Government Pleader for R2 Ms. L. Victoria Gowri, Additional Solicitor General of India, assisted by Mr. S. Jeyasingh, Central Government Standing Counsel for R3.

*Arunima Bose, Editorial Assistant has reported this brief.

Hot Off The PressNews

The Ministry of Information and Broadcasting has issued an advisory asking all private television broadcasters to follow guidelines issued by the Advertising Standards Council of India (ASCI) for advertisements relating to online gaming, fantasy sports etc. The Ministry has advised that the advertisements should not promote any activity prohibited by statute or law.

“It has come to the notice of Ministry of I&B that a large number of advertisements on Online Gaming, Fantasy Sports, etc. have been appearing on the television. Concerns were expressed that such advertisements appear to be misleading, do not correctly convey to the customers the financial and other risks associated thereof, are not in strict conformity with the Advertising Code laid down under Cable Television Networks (Regulation) Act, 1995 and the Consumer Protection Act, 2019” the advisory said.

The advisory has been issued after a consultation meeting held by the I&B Ministry with the officials and representatives of the Ministry of Consumer Affairs, ASCI, News Broadcasters Association, Indian Broadcasting Foundation, All India Gaming Federation, Federation of Indian Fantasy Sports, and the Online Rummy Federation.

ASCI guidelines require that every such gaming advertisement must carry the following disclaimer: ‘This game involves an element of financial risk and may be addictive. Please play responsibly and at your own risk”. Such a disclaimer should occupy at least 20% of the advertisement space.  The guidelines also state that gaming advertisements cannot depict users under the age of 18 years as engaged in playing a game of “online gaming for real money winnings” or suggest that such users can play these games. The advertisements should neither suggest that online gaming presents an income-generating opportunity as an alternative to employment nor depict a person playing such games is more successful than others.

The Advertising Standards Council of India, established in 1985, is a Mumbai based self-regulatory voluntary organization of the advertising industry in India. It seeks to ensure that advertisements conform to its Code for Self-Regulation.  Under the Cable Television Networks (Regulation) Act, 1995 it is mandatory for television networks to follow the advertising code laid down by ASCI.

Ministry of Information & Broadcasting

[Press Release dt. 05-12-2020]

[Source: PIB]

Case BriefsHigh Courts

Madras High Court: The Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., while addressing the instant matter ordered an Interim direction directing the respondents to restrain the TV channels from telecasting obscene and vulgar programmes and Advertisements.

Telecast of vulgar and obscene programmes and advertisements

The instant petition was filed to seek direction for respondents to take immediate and effective steps including monitoring, prosecution, pre-censorship, etc. against the television channels and cable operators regarding, telecast of vulgar and obscene programmes and advertisements violating the programme code and advertisement code and other penal laws etc., and create adequate and easily accessible effective complaint Redressal Mechanism for lodging complaint and immediate redressal regarding telecast of vulgar and obscene programmes and advertisements in television.

Bench was shocked to note that in the television, about 10 p.m. all the television channels telecast some advertisements, which exhibit obscenity to promote the sale of condoms, which in fact, are being viewed irrespective of the age and absolutely available in all television channels.

Anybody who sees these programmes will be shocked by the pornographic content.

Nudity is exhibited in advertisements, which is punishable under Section 16 of the Cable Television Network (Regulation) Act, 1995. Firther, it was also stated that. as per Rule 7(1) of the Cable Television Network Rules, 1994, the programmes telecast should not offend “morality”, “decency” and “religious susceptibilities” of the subscribers.

As per Rule 7(2) (vi), the Cable Operators shall ensure that the portrayal of the female form, in the programmes carried in cable service is tasteful and aesthetic and is within the well established norms of good taste and decency.

However, in the programmes/advertisements, which are telecasted in the television in the name of selling condoms and aphrodisiacs, inner wears are in violation of the Cable Television Network Rules, 1994.

Minds of Youngsters and Children

Nudity is available in the name of Doctor’s advice as well as advertisements and it is freely available and is being viewed by all including the children.

Interest of justice requires to issue a direction as prayed for and also to safeguard the children and women, therefore interim direction restraining the telecast of vulgar and obscene programmes and advertisements violating the programme code and advertisement code and other penal laws etc., has been ordered.

Ministry of Information and Bradcasting gave it’s response as follows:

“…all programmes and advertisements telecast on private satellite TV Channels should be in conformity with the prescribed Programme and Advertising Codes enshrined under the said Act and the Rules thereunder, which contain a whole range of parameters to regulate programmes and advertisements. Appropriate action is taken as and when violation of said Codes is established.”

Court observed that there is no censorship for the advertisements and programmes which are being telecasted on Satellite TV Channels.

In view of the said, respondents should answer on the censorship of programmes telecast of satellite TV channels as contemplated under Section 5(A) of the Cinematographic Act 1952.[K.S. Sagadevaraja v. Secy., Ministry of Information and Broadcasting; WP (MD) No. 16087 of 2020, decided on 11-11-2020]

COVID 19Hot Off The PressNews

Ministry of AYUSH has taken cognizance of the news being recently flashed in the media about Ayurvedic medicines developed for treatment of COVID-19 by Patanjali Ayurved Ltd, Haridwar (Uttarakhand). Facts of the claim and details of the stated scientific study are not known to the Ministry.

The concerned Ayurvedic drug manufacturing company has been informed that such advertisements of drugs including Ayurvedic medicines are regulated under the provisions of Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and Rules thereunder and the directives issued by the Central Government in the wake of COVID outbreak. Ministry had also issued a Gazette Notification No. L.11011/8/2020/AS dated 21st April, 2020 stating the requirements and the manner the research studies on COVID-19 with Ayush interventions/medicines should be undertaken.

In order to make this Ministry aware of the facts of the aforesaid news and verify the claims, Patanjali Ayurved Ltd has been asked to provide at the earliest details of the name and composition of the medicines being claimed for COVID treatment; site(s)/hospital(s), where the research study was conducted for COVID-19; protocol, sample size, Institutional Ethics Committee clearance, CTRI registration and results data of the study (ies) and stop advertising/publicizing such claims till the issue is duly examined. Ministry has also requested concerned State Licensing Authority of Uttarakhand Government to provide copies of license and product approval details of the Ayurvedic medicines being claimed for the treatment of COVID -19.

Ministry of Ayush

[Press Release dt. 23-06-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., directed the State to remove from all Government portals and facebook sites of government institutions and departments the publications that are Anti Citizenship (Amendment) Act, 2019 and National Register of Citizens (NRC).

Court further asked the Eastern Railway and Southern-Eastern Railway to place reports with respect to actual details of loss caused to railway property and damages incurred therein. The reports will also contain a statement in regard to the action taken and the action to be taken for recovery of loss caused for such damages to the railway property.

The Bench decided to leave open the legal issue as to whether the State or the Government could issue such publications at State expense or using the government machinery.

Court also noted the Advocate General Kishore Datta’s response with respect restrictions on internet services, that the same have been lifted throughout the State and the publication material which is anti-CAA and NRC to be withdrawn from circulation.[Sri Surajit Saha v. State of W.B., 2019 SCC OnLine Cal 5228, decided on 23-12-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of K. Vinod Chandran, J. heard a batch of writ petitions dealing with permission to publish advertisements in print media seeking donation of kidneys from altruistic donors from the public. This Court, on previous occasions has permitted such publications, holding that the Transplantation of Human Organs and Tissues Act of 1994 does not prohibit such publications as long as no financial arrangement is made between the parties.

While the petitioners contended that the Act only prohibited publications inviting donors for consideration, the State contended that there existed no safeguards to prohibit commercial dealings once the publication had been made. It was also brought to the notice of the Court that the media refuses to publish due to fear of prosecution. The Court opined that it could not direct publication if the media was refusing due to fear of prosecution or due to ethical reasons and that it will not be proper for the Court to exercise the discretionary extraordinary jurisdiction.

The Court held that the Act was “a perfect example of social engineering and it is not for this Court to interfere with such a law on misplaced sympathies.” Therefore, the prayer to allow such publications was not allowed by the Court. The Guiding Principles for Organ Donation were also discussed by the Court and the Bench also came up with an alternate measure wherein, the petitioners seeking kidney transplants could register themselves with the Kerala Network for Organ Sharing. [Moideen E.M. v. State of Kerala, 2017 SCC OnLine Ker 21219, decided on 24-11-2017]

Case BriefsHigh Courts

Delhi High Court: Procter & Gamble Home Products Pvt. Ltd. (P&G) – manufacturer of Head & Shoulders Anti-dandruff Shampoo priced Rs. 3 per sachet and Hindustan Unilever Ltd. (HUL)-manufacturer of Clinic Plus shampoo priced Re 1 per sachet filed suits against each for comparative advertising of their products. The advertisement impugned in each of the suit indisputably compares the two products and though does not name the product of the other but, besides showing the sachet of the advertiser‘s own product, shows sachet of the other‘s product. All the three suits were dealt with together by the  Court.

Before approaching the Court, HUL had approached Advertising Standards Council of India (ASCI) which rejected the said complaint. The High Court Judge considered the rival contentions and highlighted that ASCI was established in 1985 as a company under Section 25 of the  Companies Act, 1956 and with advertisers, media, advertising agencies and other professional/ancillary services, industries connected with advertising as its sponsors and with the purpose of self-regulating the advertisements and to ensure that the advertisements conform to the Code of self-regulation. The Code for self regulation in Advertising (the Code) of ASCI has been drawn up by people in the profession and industries in or connected with advertising.

Justice Rajiv Sahay Endlaw ruled that none of the advertisements impugned was disparaging observing that all the advertisements fell in the genre of ‘Comparative Advertising’ which permits comparing own product with that of competitor‘s and calling own superior / better than competitor’s. The Court further observed that the Advertising Code of ASCI incorporated therein permits comparative advertising in the interest of “vigorous competition and public enlightenment.” However, the Court elucidated further on this saying that fetters which are placed therein are that there should be no likelihood of the consumer being misled as a result of the comparison and the advertisement does not unfairly denigrate, attack or discredit other products directly or by implication.

The Judge applied the dual test of balancing the fundamental right of advertiser under Article 19(1)(a), with the Constitutional right of the competitor under Article 21 to reputation of his goods and also applied the test of proportionality observing that the advertisement/s in neither of the three suits could be found as defamatory or having the impact of changing the opinion of the ordinary man/consumer to the prejudice of the plaintiff in the suit.

The Court brought in notice that the disparagement claimed was with respect to shampoo sold in sachets and each sachet was for one wash and said that even if a consumer changes opinion on watching the advertisement about the shampoo and switches to another one, he/she may immediately shift to the earlier one if doesn’t find the results satisfactory and hence, concluded that this way, the market forces would prevail in long run. The Court finally observed that today, the consumers are vigilant enough o find their best interest and are armed with the laws for their protection from false claims in advertising, is requiring the producers/manufacturers also to be cautious in making the same and therefore, in the face of such consumer law developments, reliefs for disparaging advertising have to be restricted to gross cases, the court concluded and dismissed the suits. [Procter & Gamble Home Products Private Limited V. Hindustan Unilever Ltd., 2017 SCC OnLine Del 7072, decided on 17.02.2017]

Legislation UpdatesNotifications

The Ministry of Information & Broadcasting framed guidelines and criteria for Empanelment of suitable agencies and Rate fixation for advertisements on websites aimed to devise principles and instruments to streamline the release of Government advertisements on websites. The policy emphasizes that only websites which are owned and operated by companies that are incorporated in India will be considered for empanelment by Directorate of Advertising & Visual Publicity (DAVP). However, websites owned by foreign companies/origin can still be empanelled if such companies have branch offices which are registered and operating in India for at least one year.

The policy stipulates eligibility criteria for websites to get empanelled with DAVP which includes Unique Users (UU) per month data, which shall be cross-checked and verified by internationally accepted and credible third party tool that monitors website traffic in India. The policy requires that the websites shall run the Government ads through a Third Party Ad Server (3-PAS) engaged by DAVP for providing all relevant reports linked with online billing and will be used for verification of bills for payment. The Unique User Data of each empanelled websites will be reviewed in first week of April every year. The guidelines categorises the Unique User per month data of the websites into three categories which is mentioned below.

Category Unique Users per month
A 5 million and above
B 2 million to 5 million
C 0.25 million to 2 million

-Press Information Bureau