Ronita Biswas | National Law University, Orissa | 5th February 2020
M/S EG. Communications Pvt. Ltd. v. Election Commission of India (W.P.(C) 12073/2019 & CM APPL.49463/2019 (stay), CM APPL.293/2020 (for condonation of delay))
Facts
Petitioners were companies/entities engaged in providing advertising spaces at various places. Petitioners had participated in the tender process for securing long-term license for advertising rights, which were for a period of ten years. They had submitted their tenders taking into account the potential substantial earnings from political advertisements during the election period and considering that there are 4-5 elections in a span of 10 years. They had accordingly calculated and submitted their bids.
Thereafter, the Petitioners filed a writ petition before the High Court seeking quashing of the orders of the the Election commission of India (Respondents No. 1) and Delhi Metro Rail Corporation Ltd. (Respondent no. 3) regarding ban on political advertisements on Government properties. Petitioners further seek a restraint on the Respondents from interfering with the lawful business of the Petitioners undertaken pursuant to their respective licence agreements.
Petitioner’s contention
It was contended by the Petitioners that Respondent no. 1 had time and again clarified that there was no ban or prohibition on political parties from putting up their advertisements on commercially authorised areas.
It was contended that the Respondent no. 1 had issued impugned directions to the Chief Electoral Officer, Govt. of NCT of Delhi (Respondent no. 2) to advise Respondent no. 3 to insert appropriate clause in the contract with the Petitioners. However, clause 9.0 (e) of the agreement between the Petitioners and Respondent no. 3 already contemplated putting up of advertisement during the period of Model Code of Conduct.
The counsel for the Petitioners submitted that if the impugned directions were to be implemented, the Petitioners would suffer grave financial loss. They would not be able to place any political advertisement even at designated commercial spots and the political advertisements would have to be taken down. Such an action would violate their f/r of freedom of speech and expression (Art. 19 (1) (a) of the Indian Constitution) and their f/r to carry out any trade or business (Art. 19(1) (g) of the Indian Constitution).
Respondent’s contention
The Respondents had contended that during the general elections of Lok Sabha (2019), complaints were received by the Commission regarding display of advertisements containing photographs of certain political leaders at various stations of Delhi metro as well as inside the coached of the Delhi Metro. Considering all these responses, the Commission had prohibited display of election advertisements, hoarding etc. on premises owned by Governemnt/PSUs, in terms of paragraph 12.3.4 of the Model Code of Conduct Manual 2019.
The Respondents submitted the rationale behind issuing directions. It should not appear to the public that Govt. was supporting/endorsing any particular political party by permitting display of its political advertisements on Govt. properties. It was contended that there was a direct nexus between the directions and the object sought to be achieved i.e. free, fair and transparent election.
The Respondents submitted that on one hand it was the interest of free, fair and transparent elections to the legislative assembly of Delhi and on the other hand, a purely commercial interest of the Petitioners. Keeping in view the object behind the directions, it would amount to reasonable directions. Further, it was open to the Petitioners to enforce their rights, if any, vis-à-vis any commercial loss occasioned in terms of the agreement between the Petitioner and the Respondent no. 3.
Held
Petitioners were merely service providers who had entered into contract with Respondent no. 3 and hired commercial spaces for display of advertisement by third parties. Here, the Petitioners are not the ones who would be putting up their own advertisements. Thus, the contention of the Petitioners that f/r of freedom of speech and expression was being unreasonably curtailed, had no merit. No f/r of the Petitioners was affected by the said restrictions being imposed on third party advertisers or persons who seek to use the said spaces for political advertisements. The Court held that the contention regarding restrictions on freedom to carry out any trade or business does not hold merit.
The Model Code of Conduct would be only applicable for a period of one month. This indicates that the Petitioners would be prohibited for a period of 4 to 5 months, when the Model Code of Conduct would be in-force. The Court held that there was no restriction on the Petitioners in carrying out any business or trade since Petitioners could display advertisements other than political advertisements for a limited period of time. The restriction is not unreasonable keeping in view the object to be sought by the impugned directions- holding free, fair and transparent elections. These restrictions would also satisfy the test of reasonable restrictions as contemplated in Art. 19 (6) of the Indian Constitution.
The Court opined that if one were to balance equities, on one side there is pure commercial interest of private individuals and on the other side, there is the general public interest of holding free, fair, and transparent elections. The balance clearly tilts in favour of the general public interest. The general public should not be given an impression that Government was endorsing or supporting any particular political party by permitting its advertisements to be displayed on properties owned by the Government/PSUs. Besides, the Constitution mandates to the Respondent no. 1 powers to superintend, direct, control and conduct of elections to the Parliament and the State Legislature, to the officer of the President and Vice President
Hence, the restrictions imposed by the Respondent no.1, are reasonable and do not violate any provisions of the Constitution of India.
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