Advertising plays a crucial part in promotion of the goods and services that a company has to offer. But these companies and advertisers take advantage of the situation and the opportunities they have by publishing misleading, false and deceptive advertisements. Though India has various legislations to curb the issue of such misleading and deceiving advertisements, due to the loopholes in the legislation and the inefficiency of the concerned authorities. We need to work towards putting an end to such issues in India.

There are various landmark judgments in India on the issue of Advertising. These serve as a precedent to the present cases that are being registered across the country.

In the case of Common Cause V. Union of India:[1]

Common Cause

     Versus

Union of India

Writ Petition (Civil) No.13 of 2003 (Passed on 15^th May 2015)

This case is regarding the regulation of the Government Advertisements to ensure that no Public Funds are being misused and to curb the wastage of these funds which are used to glorify specific individuals.

Government Advertisement (Content Regulation) Guidelines 2014

These regulations contain 5 main principles that were issued by the committee to regulate the sole matter and content of any advertisements that are being published. They are as follows:

1.     Any advertisement campaign must and should be related to the responsibilities of the Government.

2.     Any content or material of the advertisement must be presented and published in a transparent, fair, and accessible way which would ensure that the objectives of the campaign are met.

3.     The advertisement must in no way promote the political interests of any Party.

4.     The campaign being organised must be done in such a way that the funds are used in a very minimalistic way.

5.     Any advertisement being published must and should comply with the legal necessities and with all the financial formalities.

The judicial reasoning given to this matter was that if there is any bit or an element of information in the advertisement that would have a positive impact on the citizens by keeping the public informed regarding the functioning of the Government, then such advertisements are permissible as they account to a positive impact in the society. The bench in this case also considered the practices prevalent in various neighboring countries bound to jurisdictional restrictions.

The main issue taken into consideration in this case was regarding whether the photograph of the individual is permitted while publishing an advertisement. The court said that the photograph must be avoided as photographs tend to develop cult against the reputation and belief to that person. It was said that the concept of transparency and fairness must always be maintained by the Government.

In the case Vinod Singhal V. Secretary of Medical and Health Department:[2]

      Vinod Kumar Singhal

Versus

      The Secretary, Medical and Health Department, Govt, of Rajasthan, Jaipur & Others

D.B. Civil Writ Petition No. 6695 of 2003

In this writ petition that was filed by the petitioner, the petitioner prayed for holding the respondent liable for the vulgar and fraud advertisements being published and to seek all the required step to be taken to curb such misleading advertisements. The petitioner also prayed, in this suit, that a strict action must be taken against companies and institutions that publish any kinds of cheating and misguiding advertisements that deceive the innocent consumers and that they must be punished.

The government replied to this with a notice that said that they are cautious and are checking and taking necessary steps pertaining to such false and misleading advertisements. They mentioned that there are few amendments being made to ensure advertisements are being published in nothing but only good faith. The Government finally said that as per the guidelines and provisions of the SEBI Act, there is no need to give any special order or notice to the respondents. This writ petition was hence dismissed right at the admission stage.

In the case of Director-General of Investigation and Registration V. Mrs. Kamlesh Thaper:[3]

Director-General of Investigation and Registration

Versus

Mrs. Kamlesh Thaper

                            (I.A. No. 27 of 1988 in U.T.P.E. No. 118 of 1988)

The petition had filed this suit seeking for a temporary injunction that is provided under the Section 12 A and Section 36 B of the Monopolies and Restrictive Trade Practices Act, 1969.

The advertisement published by the respondent in this case was that the sex of the un-born child of any pregnant woman could be given by conducting a test. The entire claim that there could be any detection of the gender of the unborn child and for that matter even an artificial insemination was false.

Section 12 A (2) of the Monopolies and Restrictive Trade Practices Act, 1969 allows the petitioner that is the Director-General to issue a notice of intimation of an injunction. Section 36 B (c) allows the petitioner to send a copy of the main application. The petitioner may issue a copy of all the annexures and affidavit.

In this case, it was made clear that no information present in either of the notices or the issues may prejudice the final decision whatsoever provided under Section 12 A of the Monopolies and Restrictive Trade Practices Act, 1969.

In the case of Director-General of Investigation and Registration V. Oriental Finance and Exchange Co.[4]

Director-General of Investigation and Registration

Versus

Oriental Finance and Exchange Co.

(I.A. No. 17 of 1987 in U.T.P. Enquiry No. 54 of 1987)

This very suit has been filed by the petitioner under Section 12 A of the Monopolies and Restrictive Trade Practices Act, 1969 seeking for a relief and an ex-parte interim injunction that would aid in restraining the respondent from making and publishing false, misleading and deceiving advertisements which constitutes an unfair trade practise.

The court allowed the application and thus an injunction was granted to the respondent from publishing false and misleading advertisements and tricking the public. The court also said that whatever has been stated in this order shall not prejudice the merits of the arguments of the respondent’s side in this case of the unfair trade practice enquiry.

In the case of Sameer Jain & Another V. Union of India:[5]

Sameer Jain & Another

   Versus

Union of India & Others

(on 7 February 2020)

The case has been filed to address the issue faced by the petitioner which was pertaining to the excess powers given to the Advertising Standard Council of India (ASCI). It has been submitted that ASCI being a private body has been given the whole authority to regulate the misleading and false advertisements from being published. The petitioner claims that it is tantamount to exercise such excess delegation of powers to a private body like ASCI. The petitioner claims that such powers must be vested in the Government. In Drugs and Cosmetics Act, 1940 and other such legislations, it has been prayed that the Government must be the only body to take authority and filter misleading and deceiving advertisements from fair and transparent advertisements. The government must be the sole authoritative body in this regard and not a private body like the ASCI.

In the case of Havells India Ltd & Another V. Amritanshu Khaitan & Others:[6]

Havells India Ltd & Another

      Versus

Amritanshu Khaitan & Others

(on 17 March 2015)

This suit has been filed in respect to an advertising campaign that has allegedly published false and misleading advertisements. After the bench has reviewed the case thoroughly, it has been decided that the alleged advertising campaign was not found to be false or misleading in any manner and that there was no disparagement to the plaintiff whatsoever. The suit has been dismissed after various factors like the material and the representative features were compared.

While the proceedings of this case were active in the Court, the petitioner brought to notice of the Bench the new advertising campaign that was launched by the defendants. This campaign was in no manner a comparative advertisement and as it did not mention any of its rival’s name and for that matter even the plaintiff’s, the plea was dismissed.

Honourable Justice Ranjan Gogoi along with PC Ghose after the hearing of a case have prescribed certain guidelines pertaining to the advertising sector in India. they are as follows:

–        The Prime Minister, The President and the Chief Justice of India, upon their will may print their photograph along with the ad in the government advertisements but the Supreme Court made it clear that they will be held personally accountable for the same.

–        In view of commemorating birth and death anniversaries of acknowledged and great personalities and freedom fighter like Mahatma Gandhi, Jawahar Lal Nehru, Ambedkar, etc. the featuring publishing of these personality’s photograph is permissible.

Thus, it can be said that when it comes to government advertisements, the government can pay more attention towards their people’s grievances instead of spending all the public funds for such advertisements.