The case established the need for clear regulations on penalties and punishment for violating the Advertising Code, and the importance of balancing penalties with the normal telecast of the channel.

JUDGMENT

Prathiba M. Singh, J. - This hearing has been done through video conferencing.

2. The distinction between club soda and whisky is at the core of the dispute in the present case. For persons who consume the same, the distinction is quite clear! However, in the case of advertisements which are alleged to be surrogate, the lines are blurred.

3. The allegation of the Respondent is that the Petitioner ran an advertisement of "All Seasons" Club Soda which was a surrogate advertisement for "All Seasons" Whisky, sold in a similar bottle and layout. The telecast of the advertisement took place during the LIVE coverage of the Independence Day event. The footage which was shown to the Court shows that in the said live telecast, an 'L' shaped advertisement was broadcast on the 'Aaj Tak' TV channel, which, according to the Petitioner, relates to the "All Seasons" Club soda product. The Ministry of Information and Broadcasting (hereinafter, 'I&B Ministry'), however, found the same objectionable in terms of the provisions of the Cable Television Networks (Regulation) Act, 1995 and issued a show cause notice on 7th September, 2020. Reply to the said notice was also filed by the Petitioner. After hearing the Petitioner, the I&B Ministry came to the conclusion that the colour and layout of the bottle being the same as the whisky bottle of the advertiser, the advertisement is nothing but surrogate advertising and hence, the direction to issue an apology was imposed.

4. The present petition is accordingly filed challenging the impugned order dated 9th February, 2021 by which the I&B Ministry has directed the Petitioner to run an apology scroll in bold legible font at the bottom of the screen for two days continuously, with effect from 0001 hours on 16th February, 2021 to 0001 hours on 18th February, 2021. The operative portion of the order reads:

"... WHEREAS the Competent Authority, having considered all the facts and circumstances of the case, including the recording, the written submission of Aaj Tak TV channel, the recommendations of the IMC, the provisions of the Cable Television Networks (Regulation) Act, 1995 and the Rules framed thereunder, has come to a conclusion that there was a clear violation of Rule 7(2)(viii)(A) of the Advertising Code.

NOW, THEREFORE, having regard to the totality of the circumstances, as explained above, the Competent Authority in the Ministry of Information & Broadcasting, hereby directs Aaj Tak TV channel to run an Apology Scroll in bold legible form at the bottom of the screen for two days continuously with effect from 0001 hours on 16.02.2021 till 0001 hours on 18.02.2021.

Strict compliance with the above direction will be ensured by Aaj Tak IV channel ..."

5. Mr. Gopal Jain, ld. Senior Counsel submits that the channel had taken all possible steps and had exercised due diligence by calling for a Chartered Accountant's certificate in relation to the sales of "All Seasons" Club Soda. The channel had also ensured that the product being advertised was club soda and not whisky. Ld. Sr counsel further submits that the soda product of the advertiser is sold both in glass and bottles. The impugned order does not consider this aspect.

6. On the other hand, Mr. Chetan Sharma, ld. ASG along with the ld. CGSC, duly instructed by Mr. Girish Chandra Aron, Director, I&B Ministry, submits that the objectionable aspect of the advertisement was the colour and layout of the bottle as also the timing of it, which was inappropriate, leading to the issuance of the show cause notice.

7. This Court has considered the video footage which was shown by ld. Counsel for the Petitioner, as also the notice, reply and impugned order.

8. The Cable Television Network Rules, 1994, stipulate under Rules 6 and 7 the 'Programme Code' and 'Advertising Code'. However, the consequences of violation thereof, are not clearly provided for. The matter thus requires consideration.

9. At this stage, the Court is only looking at what the interim relief, if a