The public face of a private company

The PM’s endorsement of a private company distorts free and fair competition in an otherwise regulated and competitive telecom market.

“What’s in a name,” asked Shakespeare. Plenty, it appears. The use of the Prime Minister’s name and image in advertisements by a private telecom company, as part of the roll-out of their (arguably) industry-altering telecommunication services, has caused much controversy. Social media was abuzz on that day, with many questioning the propriety of a constitutional authority endorsing a private commercial venture. However, for the moment, keeping aside this question of propriety, the telecom company’s use of the Prime Minister’s name and image, to advertise the launch of its flagship service, raises an interesting legal question.

Legislative measures

The Emblems and Names (Prevention of Improper Use) Act, 1950, was enacted to “prevent the improper use of certain emblems and names for professional and commercial purposes”. The motivations behind the enactment were twofold. First, pursuant to the resolutions of the United Nations General Assembly and the World Health Assembly, member states were required to take necessary legislative measures to prevent the use, without authorisation, and in particular for commercial purposes, of the emblem, official seal and name of the United Nations and/or the World Health Organisation, within their country. Second, instances had come to light of the use of the Indian national flag and emblem, and of the names and pictorial representations of Mahatma Gandhi and other national leaders, for commercial and trade purposes, and in a manner likely to offend the sentiments of the people. The Act accordingly sought to proscribe the “…use, for the purpose of any trade, business, calling or profession... any name or emblem specified in the Schedule or any colorable imitation thereof, without the previous permission of the Central Government or of such officer of government authorized in this behalf…”. The Central government was empowered under the Act to alter or amend this Schedule, by notification in the official gazette. In keeping with the motivations behind the enactment, originally the Schedule to the Act specified only three items, namely, the name, emblem and official seal of the UN and of the WHO; and the Indian flag. However, in the course of several years, the Central government through notifications added other items to the Schedule, including, significantly, “the name and pictorial representation of the Prime Minister of India, whilst specifically carving out an exception for the pictorial use thereof on calendars, provided the calendar was not used for advertising goods.”

The question which therefore arises is whether the advertisements by using the name and image of the Prime Minister, fall foul of the provisions of the Act. At the very outset, to attract the proscription, the use of the name and image of the Prime Minister has to be for the purpose of trade or business. The advertisements in question are very craftily worded to suggest that the launch of the telecom services is dedicated to the Prime Minister’s stated vision of a digital India, and therefore the use of his name and image have to be understood in connection therewith. However, as would be obvious to a neutral observer, the company through the advertisement cleverly appropriates the Prime Minister’s name and image to further its own business interest, and therefore is likely to fall within the mischief the enactment seeks to prevent. Ultimately, therefore, the question of legality would turn on whether the company secured prior approval of the Central government before using the Prime Minister’s name and image in the advertisement. However, there appears to be no formal clarification in this respect from either party.

Individual interest and national interest

Assuming that prior permission was granted, although it would absolve the company of any wrongdoing, would raise serious questions of ‘propriety’ on the part of the Central government in granting such permission. Not least of all because it would be against the spirit of the Act itself. The Supreme Court while discussing the object of the Act had observed that certain names and institutions are considered to be sacred in civil society and as such belong to the nation; the Act, being a reflection of this national consciousness, accordingly forbade the ordinary commercial use of such sacred names and institutions by individuals for their own interest, as opposed to the national interest. The Prime Minister, as the head of the Union government, is one such sacred institution, enjoying the trust of the people. If true, by allowing the Prime Minister’s name and image to be appropriated by a private company for its own commercial interest, the Central government has belied the trust held by the people in the institution.

In addition, by singling out and granting permission to a private company to carry the name and image of the Prime Minister in its advertisements launching a commercial service, howsoever revolutionary, the Central government has given the impression that the service in question enjoys the patronage of the Government of India. Not only is this factually incorrect as the service in question enjoys no formal patronage by the Indian government, but, more significantly, the endorsement of the Prime Minister distorts free and fair competition in an otherwise highly regulated and competitive telecom market.

Jay Manoj Sanklecha works with a law firm in Mumbai.

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Printable version | Feb 25, 2020 12:09:23 PM |

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