Delhi High Court has held that the restrictions on political advertisements during the Model Code of Conduct does not violate either the freedom of speech or the freedom of carrying out trade.
Justice Sanjeev Sachdeva has noted that the said restriction on commercial speech passes the test of reasonability as it is imposed for the larger public interest of conducting free and fair elections.
The Petitioners had challenged the letters issued to it by the Election Commission and the Delhi Metro Rail Corporation. These letters had restricted the Petitioner from putting up political advertisements at commercial spaces provided by the DMRC.
It was contended by the Petitioners that Election Commission had directed the Chief Electoral Officer of Delhi Government to advise the DMRC to insert the following clause in its contract with the Petitioner:
'No political advertisement shall be displayed/pasted at the space provided on lease for commercial advertisement during the period of Model Code of Conduct. If there is any political advertisement in the provided space, the same shall be removed immediately on enforcement of the Model Code of Conduct.'
However, the contract between the Petitioners and DMRC already stipulated a clause contemplating advertising during the Model Code of Conduct. It read as:
'Advertisements pertaining to achievements by different Governments, their Departments, Ministries, Government Undertakings, other Authorities or Political Parties shall be permitted. However, no advertisement of any political party, person violating "Model Code of Conduct" shall be allowed during the period whereby "Model Code of Conduct" has been enforced by Election Commission. Further, no advertisement which violates "Model Code of Conduct" shall be permitted during the period whereby "Model Code of Conduct" have been enforced by Election Commission.'
Senior Counsel Sudhir Nandrajog, who appeared for the Petitioner, argued that if the said directions issued by the EC are implemented, the Petitioners would suffer grave financial loss. They would not be able to place any political advertisement even at the designated commercial spots and the political advertisements would have to be taken down.
It was also submitted that such an action is violative 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.
Election Commission, while responding to the Petitioners arguments, submitted that the rationale behind issuing such a direction is that it should not appear to the public that Government is supporting/endorsing any particular political party by permitting display of its political advertisements on Government Properties.
It was further contended that there is a direct nexus between the direction and the object sought to be achieved i.e. free, fair and transparent election.
The Commission went on to argue that on the one hand it is the interest of free, fair and transparent elections to the legislative assembly of Delhi and on the other a pure commercial interest of the petitioners and keeping in view the object behind the directions, it would, in any event, amount to a reasonable restriction.
Rejecting the claim of the Petitioners, the court noted that it was not the case of the Petitioners that they are the ones who would be putting up their own advertisements. Thus, their contention that the fundamental right of freedom of speech and expression is being unreasonably curtailed, has no merit.
The court also observed that there is no restriction on the petitioners, by the impugned directions, on displaying advertisements other than political advertisements during this period.
It is also held that the said restrictions rightly pass the test of reasonableness as they're imposed to serve the purpose of free and fair elections. It said:
'In any event, the interest of the petitioners is purely commercial. 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'.
Moreover, it was also taken into record, that there are no absolute restrictions on the Petitioners in carrying on any business or trade. There is only a restriction which is imposed on the petitioners on displaying a particular type of advertisement and restriction is to remain enforced only for a limited period.