Previously, the Government of India monopolized broadcasting. Hon’ble Justice P.B. Sawant (the one who recently exclaimed that the Devendra Fadnavis led BJP Government in Maharashtra does not have constitutional validity!) in Cricket Association of West Bengal v. Union of India, (1995) 2 SCC 161 however wrote, “Broadcasting is a means of communication and, therefore, a medium of speech and expression. Hence in a democratic polity, neither any private individual, institution or organization nor any Government or Government Organization can claim exclusive right over it.” There were Codes and Acts and Rules after.
In furtherance of the logic that airwaves constitute public property and thus must be utilized for advancing public good, The Cable Television Networks (Regulation) Act, 1995 regulates today the operation of cable television networks. Rule 7(9) of the Cable Television Networks Rules, 1994 (the “Rules”) states, “No advertisement which violates the standards of practice for advertising agencies as approved by the Advertising Agencies Association of India, Bombay, from time to time, shall be carried in the cable service.” The AAAI has been highly supportive to the formation of Advertising Standards Council of India (the “ASCI”). The ASCI is a Non-Statutory Tribunal incorporated under Section 25 of the Companies Act, 1956. It entertains and disposes of complaints based on its Code of Advertising Practice. The Code is based on certain fundamental principles, one of which is, “to ensure the truthfulness and honesty of representations and claims made by advertisements and to safeguard against misleading advertisements.” Though the enforcement of the Advertisement Code, by virtue of Rule 7(9) of the Rules appears plausible in theory, the ASCI does not have the power to enforce it orders or award damages. The ASCI itself admits on its website, “if a complaint is upheld, the advertisement will need to be modified or pulled out as is applicable for all complaints…only 5% of advertisements against whom complaints have been upheld have reappeared and that of too small advertisers”. The words “and that too of small advertisers” shows the ASCI’s lack of confidence in its own machinery. Does the ASCI have powers to punish for a contemptuous disregard of its orders?
On August 19, 2014 the ASCI issued the following guidelines for the Skin Whitening Products Category:
- Advertising should not communicate any discrimination as a result of skin colour. These ads should not reinforce negative social stereotyping on the basis of skin colour. Specifically, advertising should not directly or implicitly show people with darker skin, in a way, which is widely seen as, unattractive, unhappy, depressed or concerned. These ads should not portray people with darker skin, in a way which is widely seen as, at a disadvantage of any kind, or inferior, or unsuccessful in any aspect of life particularly in relation to being attractive to the opposite sex, matrimony, job placement, promotions and other prospects.
- In the pre-usage depiction of product, special care should be taken to ensure that the expression of the model/s in the real and graphical representation should not be negative in a way, which is widely seen as unattractive, unhappy, depressed or concerned.
- Advertising should not associate darker or lighter colour skin with any particular socio-economic strata, caste, community, religion, profession or ethnicity.
- Advertising should not perpetuate gender-based discrimination because of skin colour.
Some may actually comply with these guidelines in good faith. There is a difference though between being protected and the feeling of being protected. The ASCI is dog that would brandish its teeth against gun toting miscreants but cannot really ensure safety. It was always given that a beauty magazine would promote low self-esteem. The confidence has to really come from within.