Case Summary and Outcome

In October 2013, the Election Commission of India communicated a letter to the Government of National Capital Territory of Delhi, clarifying that “putting up banners/posters at homes of volunteers/supporters” in the context of Delhi’s general elections is prohibited under the Defacement Act of 2007.

The Delhi High Court held that the unregulated erection of political posters or banners on private property open to public view would amount to “public nuisance.” Accordingly, it ruled that the scope of the Defacement Act amounts to a reasonable restriction in maintaining public order under Article 19 of the Constitution on the right to freedom of expression. The Court, however, interpreted the Act to allow space for putting up posters or advertisements upon permission by local authorities, underscoring that no absolute prohibition can be placed on political speech.

Facts

On October 17, 2013, the Election Commission of India issued a letter to the Chief Electoral Officer of National Capital Territory of Delhi on the general elections to the Legislative Assembly of Delhi, clarifying that “putting up banners/posters at homes of volunteers/supporters is prohibited under the Delhi Prevention of Defacement of Property Act of 2007. Section 3 of the Act provides: “Whoever defaces any property in public view by writing or marking with ink, chalk, paint or any other material except for the purpose of indicating the name and address of the owner or occupier of such property, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to fifty thousand rupees, or with both.” Such prohibition, however, does not apply to “advertisements displayed at duly authorised public spaces for advertising by appropriate authorities.”

The political party of Aam Aadmi Party and its volunteers filed a petition in the High Court of Delhi, requesting it to declare that Section 2 of the Defacement Act does not apply to temporary placement of banners or posters on one’s own private property and that political parties should be allowed to display posters on their own private homes, as permitted under Clause 15.14 of the Model Code of Conduct for the Guidance of Political Parties and Candidates. Alternatively, the petitioners sought the Court to declare the Act unconstitutional for violating the right to freedom of expression guaranteed under Article 19 of India’s Constitution.

Decision Overview

The Court first discussed the constitutionality of regulations prohibiting the defacement of properties in public view in light of the Indian Supreme Court’s decisions in Novva Ads v. Secretary, Department of Municipal Administration (2008) 8 SCC 42 and In Re: Noise Pollution, AIR 2005 SC 3136. The Supreme Court held that hoardings erected on private property, whether commercial or political, are required to be regulated as they are generally visible on public roads and may obstruct them, thereby being hazardous and dangerous to traffic. Citing Novva Ads, the High Court of Delhi noted the Supreme Court’s understanding that in fact “hazard and other consequences of a political hoarding/poster may be far more than that of commercial hoarding/poster.” [para. 20]

Accordingly, the Court rejected the petitioners’ notion that there is an absolute freedom to do anything on one’s own private property, calling it “clearly fallacious.” [para. 21] It went on to advocate the importance of reconciling conflicting rights, mainly between the neighbours’ rights to a decent, humane, and healthy environment and the right to freedom of expression. It stressed that proliferation of unlimited posters on buildings in public view would create ugliness, visual blight and impinge on the privacy of the community.

As to the constitutionality of the Defacement Act, the Court was of the opinion that the regulation serves a number of interests envisioned under Article 19 of the Constitution on the right to freedom of expression, including the maintenance of public order. It held that “unregulated putting up of posters/banners/hoardings even if on one’s own property, is a public nuisance, a law regulating the same would be a law in the interest of public order within the meaning of Article 19(2).” [para. 28] The Court further emphasized that such interest was “greater than the rights of candidates contesting elections and their supporters to canvass and propagate their views.” [para. 31]

The Court, however, read the Defacement Act to allow space for putting up posters or advertisements upon permission by local authorities, underscoring that no absolute prohibition can be placed on political speech.

Based on the foregoing analysis, the High Court of Delhi dismissed the petition. It further directed the municipal corporations functioning under the Delhi Municipal Corporation Act to ensure the existence of a policy for granting permission for political advertisements within three months after the entry of judgment.