Constitutional Law II Trimester IV

FREEDOM OF COMMERCIAL ADVERTISEMENTS

Name : Rajarshi Banerjee

Class : 2nd year, B.A.,L.L.B.(Hons)

Roll No : 1835

Submitted on: 3rd August ,2011

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY

1
CONTENTS

Table of Statutes and Cases....3

Introduction..4

Research Methodology..5

CHAPTER ONE: Freedom of Speech and Expression and its Restrictions.6

1 (i) Position In Indian Constitutional Law ......6

1 (ii) The Right To Know.....7
1 (iii) Restrictions That Can Be Imposed On The Freedom Of Expression....8

CHAPTER TWO: Freedom of Commercial Expression In India In the Light Of

Hamdard Dawakhana v. Union of India..12

CHAPTER THREE: The Evolved Judicial Position On Freedom Of Commercial Expression

In The Light Of Tata Press Ltd v. Mahanagar Telephone Nigam Ltd...16

3 (i) A Recent Judicial Interpretation Of The Law Regarding Freedom Of Commercial

Expression21

Conclusion.25

Bibliography..26

2
TABLE OF CASES AND STATUTES

Cases :
1). Maneka Gandhi v. Union of India AIR 1978
2). Star Video v. State of Uttar Pradesh AIR 1993 All 25
3). State of Uttar Pradesh v. Raj Narain AIR 1975 SC 864
4). Reliance Petrochemicals Ltd v. Indian Express AIR 1989 SC 190
5). Sakal Papers v. Union of India AIR 1962 SC 305
6). Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer (1994) 2 SCC 434
7). Indian Express Newspapers (Bombay) Ltd v. Union of India AIR 1986 SC 515
8). State of Madras v. V.G. Row AIR 1952 SC 515
9). Chiranjit Lal v. Union of India AIR 1951 SC 41
10). Janath Mosque v. Vakhon Joseph AIR 1955 TC 227 (FB)
11). Papanasam Labour Union v. Madura Coasts Ltd AIR 1995 SC 2200
12). Khare v. State of Delhi AIR 1950 SC 211
13). Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir AIR 1980 SC 1992
14). Bennet Coleman & Co v. Union of India AIR 1973 SC 106
15). Hamdard Dawakhana v. Union of India AIR 1960 SC 554
16). Tata Press Ltd v. Mahanagar Telephone Nigam AIR 1995 SC 2438
17). Mr. Mahesh Bhatt and Kasturi and Sons v. Union of India 147(2008) DLt 561
18). Central Hudson Gas and Electric Corp v. Public Service Commission 447 U.S. 557,
Media L. Rep. (1980)
Statutes :

1). The Constitution of India

2). Constitution of the United States of America

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INTRODUCTION

Freedom of speech and expression is one of the most important Fundamental Rights
available to a citizen of a liberal, democratic country. Political speech- generally an
expression of ideas, opinions, values as well as encompassing literary and artistic
expressions is viewed by the Constitution as deserving of the utmost protection from
any censorship (direct or indirect) by the state or any other entity. It is viewed as
extremely essential to a democracy for there to be free discussion of ideas and a right to
express dissent without fear of censorship or dissent.
But the scene changes remarkably when the issue of commercial speech- speech that is
generally considered to have furtherance of business interests as its motive- is considered.
Unlike political speech it has not been accorded with the same constitutional status and
protection by the judiciary right from the initial post-Constitution days in India. The main
reason forwarded for this being the judicial view is that commercial speech has a business
motive and is not an expression of ideology or opinions or creativity. Political speech is
usually given huge leeway when it comes to its accuracy and its effects on its audience. It
is usually an assertion of opinion that cannot be proved objectively and the same is
viewed as not necessary. But commercial speech- because of its backers motive of
gaining more profit and it ostensibly influencing a consumers purchasing habits and also
promoting actual products and services for public consumption that could be harmful to
the public or the state or both- is subjected to much, much more stringent standards than
political speech when the question of the freedom of its expression is raised.
In the following paper the researcher will first engage in a discussion on the
Fundamental Right to Speech and Expression to set the context for the paper and then go
on to trace the evolution of the judicial position on constitutional protection of the
freedom of commercial expression with reference to Indian case law pertaining to the
subject.

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RESEARCH METHODOLOGY

Aims and objectives of the paper:

An attempt has been made in this paper to establish the position of the Fundamental
Right to freedom of speech and expression in Indian Jurisprudence and to analyze the
status of freedom of commercial expression in India..
Scope and Limitations
The scope has been mainly limited to the context of the Indian constitution, its operation
and Indian case law.
Research Questions and Hypothesis
1). What is the position of the fundamental right to freedom of expression in India?
2). What is the extent to which this right has been protected and how can it be restricted?
3). How has freedom of commercial expression been viewed by the Indian judiciary?
4). What are the tests that can be applied to determine whether a commercial sppech
specimen deserves constitutional protection or not?
Division of the Paper
The main body of the paper has been divided into two themes and three chapters. The
first theme (and chapter) is concerned with the fundamental right of freedom of
expression and the restrictions that can be imposed on it. The second one (and next two
chapters) is concerned specifically with the freedom of commercial expression in India
and how its status in Indian jurisprudence has evolved.
Sources of data
Both primary and secondary sources of data have been used.
Method of Writing
The paper under question is analytical in nature.
Mode of Citation
An Uniform Mode of Citation has been followed in this paper.

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CHAPTER ONE:

FREEDOM OF SPEECH AND EXPRESSION AND ITS RESTRICTIONS

Freedom of speech and expression is the lifeblood of a functioning liberal democracy

since it opens up means of free discussion of issues belonging to the political, social,
economic realms as well as letting artistic, cultural ideas bloom and develop by not
placing any fetters on expression, literary, artistic or otherwise. Freedom of speech leads
to constructive debates surrounding governance and encourages democracy by not
stifling individual voices thereby creating space for dissent and criticism that can be
expressed in non-violent, constitutional ways.
POSITION IN INDIAN CONSTITUTIONAL LAW :

Article 19(1)(a) of the Indian Constitution ensures the right to freedom of speech and
expression to all Indian citizens. This is essentially a fundamental right and is enshrined
as such in Part III of the Constitution of India under the provisions pertaining to the Right
to Freedom. Article 19(1)(a) to Art 19(1)(g) guarantee some basic, vital freedoms . They
are the freedoms of speech and expression [Art 19(1)(a)], peaceable assembly without
arms [Art 19(1)(b)] , to form associations or unions [Art 19(1)(c)], freedom of
movement throughout the territory of India [Art 19(1)(d)], freedom to reside and settle
in any part of the territory of India[Art 19(1)(e)] and freedom to practice any
profession, or to carry on any occupation, trade or business [Art 19(1)(g)].Through
various judgments it has been established that these freedoms are available to citizens
only.
1
It has been observed in Maneka Gandhi v. Union of India that if democracy means
government of the people by the people, it is obvious that every citizen must be entitled to
participate in the democratic process and in order to enable him to intelligently exercise
his right of making a choice, free and general discussion of public matters is absolutely
essential.

1
AIR 1978 SC 597

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The freedom of expression that is enshrined under Art 19(1)(a) take the right to express
ones views through any medium and thus includes the right to propagate or publish
opinions thereby placing the freedom of communication on a sound constitutional
foundation.2 But this freedom is subject to restrictions too which are contained in Art
19(2) but any limitation on the exercise of this right under Art 19(1)(a) not falling under
the defined ambit of Art 19(2) will not be constitutionally valid.3
Judgments have emphasized that freedom of expression is not absolute and is essentially
concerned with the right to express and propagate ones own views or creative output.
The right to disseminate any information or claim or opinion or a product born out of a
creative process by anyone who is not the original progenitor of that opinion or product,
especially someone whos doing it for commercial gain only, does not enjoy unreserved
constitutional protection. In Star Video v. State of Uttar Pradesh4 it was held that an
exhibitor of video films cannot claim protection under Art 19(1)(a) since he shows films
merely to make commercial profit and not to arouse any public opinion or propagate any
ideas. Only the producer of a film, not its exhibitors, can claim protection under the
provision since he owns the creative rights to the product but the same argument cannot
be used to deny newspaper publishers protection under the same provision as circulation
of newspapers and magazines is under the control of the publisher but a film after
production goes out of the hands of the producer and is exhibited by persons unconnected
with the production of the film.
THE RIGHT TO KNOW
The right to freedom of speech and expression has been recognized by the Supreme Court
to include the right to receipt of information and expression thereby expanding the ambit
5
of Art 19(1)(a). In State of Uttar Pradesh v. Raj Narain it was observed that The
people of this country have a right to know every public act.. by their public
functionaries....The right to know.. is derived from the from the concept of freedom of
speech.. In Reliance Petrochemicals Ltd v. Indian Express 6 it has been observed by the
bench deciding the case that We must remember that people at large have a right to
2
M.P. Jain; INDIAN CONSTITUTIONAL LAW; 987 , 980;(Fifth Edition, 2003)
3
Id
4
AIR 1993 All 25
5
AIR 1975 SC 864
6
AIR 1989 SC 190

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know in order to be able to take part in a participatory development in the industrial life
and democracy. Right to know is a basic right which citizens of a free country aspire in
the broader horizon of the right to live n this age on our land under Art. 21 of the
Constitution. Thus the right to know has been lent a constitutional foundation in terms
of both Art 19(1)(a) and Art 21. This explicit judicial recognition of the right to reception
of information is extremely important in the light of the subject that is being dealt with in
this paper.
Freedom of the press is not explicitly recognized as a Fundamental Right by the
Constitution but its status as one such right has been judicially recognized in Sakal
Papers v. Union of India7 where it was stated that freedom of the press is a species of
which freedom of expression is a genus. In Printers (Mysore) Ltd. v. Assistant
Commercial Tax Officer 8 it has been held that the press is not immune from civil laws e.g
those pertaining to taxation and labour or even criminal laws. What is inconsistent with
the protection granted to the press under Art 19(1)(a) is a law that imposes restrictions on
that are directly related to the right to disseminate information, the right to publish and
circulate newspapers. In Indian Express Newspapers (Bombay) Ltd v. Union of India9 it
has been observed that any levy imposed on raw material or services essential the
functioning of the press, to the publication and circulation of newspapers is subject to
review by courts in the light of the provisions of the Constitution.

RESTRICTIONS THAT CAN BE IMPOSED ON FREEDOM OF EXPRESSION

Limitations on a citizens rights to the freedoms guaranteed by the clauses under

Art 19(1) can be constitutionally valid only if they fulfill the criteria laid down by Arts
19(2) to Art 19(6). These limitations lay it down that the freedoms are not absolute but
are subject to reasonable restrictions as envisaged by the relevant clauses of Art 19 and
also that by virtue of these clauses legislatures also have a limitation on their power to
restrict those freedoms10. Significant characteristics of the clauses under Art 19 that

7
AIR 1962 SC 305
8
(1994) 2 SCC 434
9
AIR 1986 SC 515
10
M.P. Jain; Supra note 2, at 982

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pertain to the constitutionally allowed restrictions on freedoms guaranteed by Art 19(1)
are :11
1). Restrictions can be imposed only under the authority of law and not solely by an
administrative order or executive action.
2). Any restriction must be reasonable .
3). Restrictions must be related to purposes mentioned in clauses of Art 19(2) to Art
19(6).
Questions regarding constitutional validity of a law that arise by virtue of the last two
clauses have to be decided by the courts when the said feature of the law is challenged by
aggrieved parties. The courts then have to formulate a test for reasonableness that is
unique to every case because there is no definite, laid out test for the same as it is
extremely difficult to exactly define reasonableness. Also applying a fixed test, if one is
ever formulated, would lead to severe miscarriage of justice as each case has its own
merits and complexities. In State of Madras v. V.G. Row 12 it has been observed that It is
important in this context to bear in mind that the test of reasonableness, wherever
prescribed, should be applied to each individual statute impugned, and no abstract or
general pattern, of reasonableness can be laid down as applicable to all cases.
The Burden Proof When Infringement Of Art 19(1) is alleged
In Chiranjit Lal v. Union of India 13 it has been held that the presumption is always in
favour of the constitutionality of an enactment and the burden of proof lies on that
plaintiff who disputes that feature of the legislation by alleging that it has transgressed on
his rights under Art 19(1). The constitutionality of the law has to be presumed as the
legislature which first passed the said enactment must be deemed to have acted with a
desire to keep within the restrictions on its actions laid down by the Constitution because
legislators legislate under the solemnity of an official oath which is not to be supposed
they will disregard and they occupy a very high position by virtue of trust reposed in
them by the citizenry. Therefore it must be supposed that they themselves have
deliberately solved in its favour any doubts as to the constitutionality of a legislative
action that they have undertaken so that the courts may with the same confidence repose

11
M.P. Jain; Supra note 2, at 982
12
AIR 1952 SC 196
13
AIR 1958 SC 41

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their own conclusions as one based upon their best judgment. 14 But if the petitioner is
successful in showing that the impugned law is prima facie in violation of any of the
rights mentioned in Art 19(1) then the onus shifts on to the respondent to show that the
legislation comes within the permissible limits stated under Arts 19(2) to 19(6) when it
comes to its restrictive effect(s) on the freedoms granted by Art 19(1). 15

Criteria For Restriction To Be Reasonable

The addition of the word reasonable enables the court to determine not only whether
the impugned restrictive law is in fact in the interest of the public order, morality, or
health (as the case may be) but also whether the restriction sought to be imposed by the
legislation is reasonable, having regard to the objective test, viz, whether the restriction
has reasonable relation to the authorized purpose or is an arbitrary abridgement of the
freedom guaranteed by the Article under the cloak of any of the exceptions.16

In Janath Mosque v. Vakhon Joseph17 it has been stated that The word reasonable
implies intelligent care and deliberation, that is, the choice of a course which reason
directs.
In Papanasam Labour Union v. Madura Coasts Ltd18 general principles which have to be
kept in mind while considering constitutionality of an enacted statute that has been
challenged in court because it allegedly imposes unreasonable restrictions on
fundamental rights have been laid down. They include the proviso that the broad criterion
in applying the test of reasonableness is whether the law strikes a proper balance between
social control on one hand and the factors like right of the individual on the other hand.
Reasonableness of restrictions imposed by an impugned statute has to be tested from both
the procedural and substantial aspects and it should not be bound be procedural
perniciousness and jurisprudence of remedies. In Khare v. State of Delhi19 it has been held
that all attendant circumstances must be taken into consideration while determining
14
D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. 2
15
Id
16
Id
17
AIR 1955 TC 227(FB)
18
AIR 1995 SC 2200
19
AIR 1950 SC 211

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reasonableness and one cannot dissociate the actual contents of the restrictions from the
manner or the mode of putting them into practice i.e. both substantive and procedural
implications have to be gauged. The test to be applied is not whether a judge personally
considers particular restrictions as reasonable but whether a reasonable man would
necessarily consider them unreasonable.20
To an extent the Directive Principle of State Policy laid down in the Constitution are also
important in adjudging whether a restriction on a Fundamental Right is reasonable or not
and it has been observed in Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir 21
that any action taken by the Government with a view to giving effect to any one or more
of the Directive Principles would ordinarily, subject to any constitutional or legal
inhibitions or other overriding considerations, qualify for being regarded as reasonable,
while an action which is inconsistent with or runs counter to a Directive Principle would
incur the reproach of being unreasonable.
The state cannot pass a law that directly infringes on one freedom for even securing the
better enjoyment of another freedom. This has been stated in Sakal Papers v. Union of
India22 in which the judges opined that Art 19 lists different freedoms separately and then
specifies the extent of restrictions that can be imposed on each of them and the objects for
securing which this can be done separately. It has even observed in the same judgment
that the state cannot directly restrict one freedom by placing an otherwise permissible
restriction on another freedom.
Thus an important point to consider is whether the subject matter or the effects of the
impugned legislation should be the basis when ascertaining whether a law violates Art
19(1)(a) or not. This has been laid to rest in Bennet Coleman & Co v. Union of India23
where the court observed that the true test is whether the effect of the impugned action is
to take away or abridge Fundamental Rights and the respondents contention that the
test to adjudge the validity of a regulatory provision should be its subject matter or pith
and substance was rejected by the said court.

CHAPTER TWO :

20
D.D. Basu, Supra note 14, at 2162
21
AIR 1980 SC 1992
22
AIR 1962 SC 305
23
AIR 1973 SC 106

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FREEDOM OF COMMERCIAL EXPRESSION IN INDIA
24
IN THE LIGHT OF HAMDARD DAWAKHANA v. UNION OF INDIA

Commercial speech is generally considered to be communications that have the sale of a

product or service as their ultimate goal.
Content regulation of commercial speech is allowed to prevent false, deceptive, or
misleading information from being transmitted.25 Generally advertisements are thought to
be commercial speech (in common parlance) but all advertisements are not necessarily
so. Its the object for promotion which the advertisement possesses that determines its
true character. Generally those advertisements that are aimed towards achieving
commercial gain through promotion of a particular product or service is regarded as
commercial speech and historically has been accorded lesser importance by the judiciary
when it comes to deciding whether it should be accorded the same level of constitutional
protection that political speech enjoys.

Generally freedom of speech is considered to be almost sacrosanct and enjoys a very high
level of judicial and constitutional protection. In the interests of a sound, healthy liberal
democracy freedom of speech has been upheld by the judiciary but the form of speech
that enjoys this kind of protection has usually been limited to political views, opinions
and ideology as well as literary and artistic creations. Apart from the grounds mentioned
in Art 19(2) and those detailed in the preceding chapter of this paper restrictions imposed
by a statute cannot have any other grounds. But commercial speech has not received that
kind of unstinted judicial and constitutional support from the earliest days of the post-
constitutional era. An important case that brought to focus the issue of commercial speech
and whether it should receive the same protection that political or artistic expressions
receive from the constitution by virtue of Art 19(1)(a) and Art 19(2) is Hamdard
Dawakhana v. Union of India. The researcher believes that an analysis of this particular
24
AIR 1960 SC 554
25
Boedecker, Morgan et al; THE EVOLUTION OF FIRST AMENDMENT PROTECTION FOR COMMERCIAL
SPEECH; (January, 1995); 38, 38; THE JOURNAL OF MARKETING; 59 (1)

12
case would be beneficial in understanding the first, clear judiciary backed position that
commercial speech occupied with regard to protection under Art 19(1)(a) and to trace the
progression that has taken place with regard to the subject that will be attempted later on
in this paper.

Facts Of The Case:26

Parliament of India enacted a statute that was aimed at controlling advertisements of

drugs in some specified cases [Drugs and Magic Remedies (Objectionable
Advertisements) Act (1954)]. Purpose of the act was to prevent objectionable and
unethical advertisements in order to discourage self-medication and self treatment. The
constitutionality of this Act was challenged by the plaintiff on the grounds that it
restricted his right to freedom of speech and expression unfairly, in contravention of Arts
19(1)(a) and Art 19(2) and also that it violated his rights to carry on business because the
restrictions were allegedly in contravention of Art 19(1)(g) .

The Judgment:

The Bench that decided the case acknowledge that advertisement was no doubt a form of
speech but that its true character is detected by the object for the promotion of which it
is employed. The judgment acknowledged that advertisements acquire some, but not all,
elements of speech or expression intended for protection by Art 19(1)(a) by bringing to
the notice of the public the activity or product or service that it seeks to publicize [the
right to disseminate and receive information that Art 19(1)(a) recognizes in certain cases].
But the judgment goes onto to state that the content and intent of the advertisement is
extremely important when deciding whether it deserves protection under Arts 19(1)(a)
and 19(2). When it (advertisement) takes the form of a commercial advertisement which
has an element of trade and commerce, it no longer falls within the concept of freedom of
speech, for the object is not propagation of ideas, social political or economic, or

26
AIR 1960 SC 554

13
furtherance of literature or human thought, but the commendation of the efficacy , value
and importance of certain goods.
This statement forms the crux of the judgment and encapsulates the legal position
occupied by commercial speech when it comes to protection under Art 19(1)(a).
The judgment iterated that advertisements prohibited by the impugned Act relate to trade
and commerce and not the propagation of ideas and that advertising of prohibited drugs
and commodities of which the sale is not in the interest of the general public cannot be
speech within the meaning of Art 19(1)(a).
In order to point out the unique, constitutionally unprotected (then) position that freedom
of commercial expression occupied (as opposed to political speech) the Bench negated
the contention that advertisements enjoyed protection under the doctrine of Freedom of
Speech by the manner in which it negated an argument made by the respondents that
relied on the judgment delivered in Alma Lovell v. City of Griffin 27. In that case an
objection was taken to a municipal ordinance prohibiting the distribution without a permit
of circulars, handbooks, advertising or literature of any kind on the grounds that it
violated the First Amendment that protected freedom of speech and expression. But the
ordinance actually led to a violation which consisted of the distribution of pamphlets and
magazines that were in the nature of religious tracts. The Bench deciding Hamdard
Dawakhana held that even though the word advertisement had been used in both the
ordinance and in the judgment pertaining to Alma Lovell the case actually related to the
distribution of pamphlets and magazines and that is why the said municipal ordinance
was struck down.

The Bench opined that the advertisements that had been banned by the impugned
legislation was being used for the purpose of furthering the business of the petitioners
and had no relationship with what may be called the essential concept of the freedom of
speech.

The judgment further went on to state that every advertisement cannot be said to be a
matter dealing with freedom of speech and nor can it be deemed to be an expression of

27
(1937) Law Ed 949

14
ideas, in the same vein as that classified as political speech, thus making it ineligible for
protection under Art 19(1)(a) straightaway.

The Bench held that In every case one has to see what is the nature of the
advertisement and what activity falling under Art 19(1)(a) it seeks to further. The
advertisement in the instant case relate to commerce or trade and not to propagating of
ideas; and advertising of prohibited drugs or commodities of which the sale is not in the
interest of the general public cannot be speech within the meaning of freedom of speech
and would not fall within Art 19(1)(a).

Thus in the case under discussion in this chapter of the paper it was clearly decided that
commercial speech (advertisements used for the furthering of business interests or used
for gaining profit) did not enjoy the protection that Art 19(1)(a) gives to speech and
expression. It was only to be afforded to speech or expression that is an expression of
ideas and opinions, or is a literary or artistic creation.

CHAPTER THREE:

15
THE EVOLVED JUDICIAL POSITION ON
FREEDOM OF COMMERCIAL EXPRESSION IN THE LIGHT OF
TATA PRESS LTD. v. MAHANAGAR TELEPHONE NIGAM LTD.28

The judgment delivered in Tata Press Ltd v. Mahanagar Telephone Nigam Ltd brought
about a tectonic shift in the way freedom of commercial speech was perceived by
constitutional jurisprudence in India. But even before this landmark judgment was
delivered , in cases decided much before the one under discussion in this chapter, the
Supreme Court had modified its view regarding commercial speech that it expressed in
Hamdard Dawakhana v. Union of India.29

In Indian Express Newspapers (Bombay) Ltd v. Union of India 30 the said Court differed
from the Hamdard Dawakhana ruling by observing that we are of the view that all
commercial advertisements cannot be denied the protection of Art 19(1)(a) of the
Constitution merely because they are issued by businessmen. It was acknowledged by
the court that if advertisements were curtailed prices of newspapers will increase and this
will adversely impact the circulation of the newspaper. Thus it would lead to a direct
interference with the right to the freedom of speech and expression. In this context the
researcher wishes to delve into the particulars of the case being discussed in this chapter.

Facts of the case :31

28
AIR 1995 SC 2438
29
M.P. Jain; Supra Note 2, at 998;
30
AIR 1986 SC 515
31
AIR 1995 SC 2438

16
The dispute revolved around whether Tata Press Ltd had the right to publish its Yellow
Pages which was essentially a buyers guide comprising advertisements given by traders,
businessmen and the only criterion for acceptance of something for publishing in its
pages was that it must pertain to the contact details and particulars of
businessmen/professionals. Mahanagar Telecom Nigam Ltd itself published a Telephone
Directory that had both white pages(comprising contact details i.e. phone numbers of
subscribers to its telephone service which was a free listing) and yellow pages
(comprising paid advertisements and published in order to increase revenue). Rules 458,
457 of the Telegraph Rules (1957) [that bestowed the exclusive rights on MTNL to
publish a list of telephone numbers belonging to subscribers to its service] was cited by
MTNL Ltd to plead that an order be granted in its favour that permanently restrained Tata
Pres Ltd from publishing its Yellow Pages.

The Judgment:32

The Bench deciding the case were of the opinion that the case hinged upon whether the
Tata Yellow Pages was a Telephone Directory within the meaning of Rule 458 or was a
Buyers Guide/ Trade Directory outside the scope of that Rule and thus eligible to be
lawfully published by Tata Press. It held the opinion that deciding this question was
intimately connected with the larger issue of whether a simple commercial
advertisement comes within the concept of freedom of speech and expression
guaranteed under Art 19 (1)(a) of the Constitution.

The appellant in this case (Tata Press Ltd) had contended that commercial speech is
protected by Art 19(1)(a) read with Art 19(2) while the respondents contention was that
purely commercial advertisement meant for the furtherance of trade and commerce was
outside the concept encapsulated by Art 19(1)(a). The respondent placed reliance on the
judgment delivered in Hamdard Dawakhana v. Union of India33 that has been discussed
in detail in the previous chapter.
32
Id
33
AIR 1960 SC 554

17
Considering the judgments cited by both parties in defense of their opposing claims the
Bench decided that the question before them is whether speech whose object is nothing
more than proposing a commercial transaction is so removed from an expression of
ideas (that usually qualifies political speech for protection under the doctrine of freedom
of speech) that it lacks all constitutional protection. The opinion of the Bench was that
Our answer is that it is not.
The Bench delved into the dual character of advertising as commercial speech when it
formulated its decision that it did enjoy protection under Art 19(1)(a). It stated that in a
democratic, liberal society the public at large has an interest in the free flow of
commercial information. Even if an individual advertisement is purely commercial in
intent or substance or both it still can be of general public interest. The Bench held that it
is wrong and futile to attempt a distinction between publicly interesting or important
commercial advertising with the intent of discriminating between them with respect to
constitutional protection as free speech. It kept in mind the changed economic scenario
in the post-1991 era of a liberalized economy. It opined that as long as the country had a
predominantly free enterprise economy the allocation of resources would be made
through private economic decisions and that it was a matter of interest to the citizens of
the country that those decisions are intelligent, well informed ones . The Bench felt that
free flow of commercial information is vital to achieve this. In the words of the judgment,
Advertising, however tasteless and excessive it sometimes may seem, is nonetheless
dissemination of information as to who is producing and selling what product, for what
reason and at what price. Thus the Court gave commercial speech a judicially
recognized unique character and importance and recognized its vital role in shaping
consumer decisions and opinions in a market economy enabling it to be protected under
Art 19(1)(a).
The other aspect of advertising that is of the form of commercial speech that was brought
into focus in the judgment was that the public at large has a right to receive the
commercial speech. It stated the judicially upheld view that the right of an individual to
listen, read and receive speech was guaranteed by Art 19(1)(a) too and that so far as
the economic needs of a citizen are concerned , their fulfillment has to be guided by the
information disseminated through the advertisements. It opined that just because the

18
propagator of commercial speech may only have a business motive behind doing so
doesnt take anything away from the importance of protecting commercial speech by
utilizing Art 19(1)(a) and Art 19(2). The protection of Art 19(1)(a) is available both to
the speaker as well as the recipient of the commercial speech. The recipient of
commercial speech may be having much deeper interest in the advertisement than the
businessman behind the publication.

Following the line of reasoning as delineated above the Bench stated in the judgment :
We, therefore, hold that commercial speech is a part of the freedom of expression
guaranteed under Art 19(1)(a). of the Constitution.

After enunciating the above principle, which gave protection of the freedom of
commercial speech under Art 19(1)(a) a concrete, judicially recognized foundation in
India, the Court opined that Right to freedom of speech and expression guaranteed
under Art 19(1)(a) of the Constitution can only be restricted under Article 19(2). The said
right cannot be denied by claiming a monopoly in favour of the government or any
otherauthority. Publication of advertisements which is a commercial speech and
protected under Article 19(1)(a) of the Constitution cannot be denied to the appellants by
creating a monopoly in favour of the government or any other authority. Publication of
advertisements which is a commercial speech protected under Article 19(1)(a) of the
Constitution cannot be denied to the appellants on the interpretation of Rule 458 and rule
459.
Thus the court established commercial speech as one eligible for recognition by Art
19(1)(a) through legal reasoning that kept in mind contemporary social and economic
needs in order to provide it with the protection granted to it by Art 19(2) which places
limitations on the restrictions that can be placed on freedom of expression.
It held that the Tata Press Yellow Pages was not at all a list of telephone numbers of
subscribers of MTNL but actually comprised paid advertisements from businessmen and
traders and because of this it qualified for protection under Art 19(1)(a). Thus its
publication was deemed lawful and MTNLs plea was not entertained by the Court. But it
did state that Tata Yellow Pages could not publish any entries similar to those in the

19
White Pages of a telephone directory if it didnt want to attract the restrictive provisions
of Rules 458 and 459.

How The Law Laid Down In Hamdard Dawakhana Was Specifically Negated By The
Decision in Tata Press Ltd

The bench negated the view propounded in the Hamdard Dawakhana judgment by
stating that there cannot be a blanket denial of constitutional protection under Art 19(1)
(a) to commercial speech just because it was intended to promote business interests i.e.
profit generation and was not an expression of ideas or opinion or literary thought.
It stated that in every case one has to see what is the nature of the advertisement and
what activity falling under Art 19(1) it seeks to further. It stated the reasons stated in the
immediately preceding section to justify why commercial speech deserved to be
included under the ambit of Art 19(1)(a). It went on further to contextualize the judgment
delivered in Hamdard Dawakhana. The advertisement that was declared unlawful in that
case was one that promoted prohibited drugs and the aim of the act that declared the
advertisement to be illegal was to prevent self-medication. Thus the sale of that drug was
harmful to public interest ,therefore, advertisements that promoted the sale of such a drug
was prohibited and such prohibition was in tune with the aims and extent of the act
impugned in that case and the need for social welfare. But that is no reason why
commercial speech as a whole should be denied protection by Art 19(1)(a) just because
it is used to further business interests.
The main issue should be protecting public welfare from certain incidences of
commercial speech that is false, misleading, deceptive and unfair and this can still be
achieved even after according commercial speech the protection of Art 19(1)(a) instead
of summarily denying it the same just because it has a business-related motive. The
importance of commercial speech in the contemporary market economy had been
brought out well by the Bench in its judgment as a ground for according it protection
under Art 19(1)(a).
The Court reasoned that even if commercial speech is granted constitutional protection ,
false, misleading instances of commercial speech can still be restricted by virtue of

20
Article 19(2) of the Constitution that specifies restrictions that can be imposed on the
fundamental right to speech and expression. Commercial speech which is deceptive,
unfair, false would be hit by Article 19(2) of the Constitution and thus the state can
regulate or prohibit the same.

The Supreme Court cited American judgments to back up this view but also noticed that
political, social speeches or public affairs oriented discussions are granted greater degree
of protection by the United States' Courts, whereas commercial speech can be restricted
and curtailed whenever the Government can show substantial justification for doing so.

A RECENT JUDICIAL INTERPRETATION OF THE LAW REGARDING FREEDOM OF

COMMERCIAL EXPRESSION

In Mr. Mahesh Bhatt and Kasturi and Sons v. Union of India and Anr.34, the Cigarette
and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and
Commerce, Production, Supply and Distribution) Act, 2003 was impugned for allegedly
violating Art 19(1)(a) by placing restrictions on the advertising, surrogate or otherwise, of
tobacco products and cigarettes. In formulating its judgment the Delhi High Court sought
to contextualize the judgment delivered in Tata Press Ltd v. Union of India. It observed
that in the case of Tata Press Limited the Supreme Court noticed the difference between
commercial advertisements, which are given by individuals for promoting sales and
commercial advertisements which are substantially for public benefit and interest. In the
case of Tata Press Limited, the question was related to publication of a buyers guide
giving information and details about services and goods being provided by different
persons to the general public. It reiterated the view that commercial advertisement no
doubt is a form of speech but its true character is reflected by the object for promotion of
which it is employed. The court was of the view that, in spite of the judgment delivered in
Tata Press Ltd commercial advertisements are entitled to limited protection under Art
19(1)(a) and are not expressions protected under Art 19(1)(a). It observed that the object
and purpose for which advertisement is published is the determining factor. When
34
147 (2008) DLT 561

21
propagation of ideas and thoughts is inconsequential, but the real purpose and object is
promotion of sales of goods and services and personal benefit without any social
purpose, commercial advertisement cannot have the same decree of constitutional
protection as in case of social or political speeches. It was, in these circumstances, where
requirement of free speech in public interest, over-shadowed the commercial interest that
in the case of Tata Press Limited the impugned legislation was struck down for violation
of freedom of press. The decision in Hamdard Dawakhana's case has not been
obliterated in the case of Tata Press Limited.
It thus reiterated the view held in Hamdard Dawakhana that commercial speech occupies
a lesser status than political speech when it comes to being accorded constitutional
protection.

It further went on to observe that Right to publish and distribute commercial

advertisements for personal business cannot be granted the same pedestal and meridian
as freedom of speech and expression given to press to disseminate news, public speeches
etc. A commercial advertisement has an element of trade and commerce and does not fall
strictly within the concept of freedom of speech for it is not for propagation of ideas'
social, political, economic or furtherance of literature or human thought. A commercial
advertisement may be creative but in a puritan sense it is entitled to protection under
Article 19(1)(a) of the Constitution only when it is claimed and established to be in
public interest. When the purpose is to merely earn profits by selling products/services,
hardly any element of free speech as such is involved. Protection under Article 19(1)
(a) in such cases will obviously be limited and subject to the public interest test, as
compared to protection in cases where the main purpose and object is to impart
information to third persons about ideas, thoughts and opinions.
Thus the Delhi Court judgment was not in total agreement with the order given in Tata
Press Ltd. Commercial expression was denied the full protection of and the status
afforded by Art 19(1)(a) and it was only given a very limited place under it. Commercial
expression was deemed to be subject to the public utility and interest test, as opposed to
political speech that is protected by Art 19(1)(a) and is subjected to only the tests
mentioned under Art 19(2). A specimen of political speech does not have to prove its

22
general utility to the public in order to enjoy the protection of Art 19(1)(a) unlike a
specimen of commercial expression, which according to this judgment, has to prove in
order to enjoy the same protection. The Delhi HC also decided that the criteria for
restricting freedom of speech mentioned under Art 19(2) was not suitable to justify
banning tobacco product advertisements but application of Art 21 [Right to Life which
encompasses the right to a healthy life] by means of harmonious construction justified the
same as it advanced interest of general public.

A Test To Determine Which Commercial Expression Should Be Protected

Courts in the U.S.A. have taken the lead when it comes to the question of whether
commercial speech should be protected. The First Amendment of the Constitution of the
U.S.A. protects commercial speech but to a lesser degree than it protects other kinds of
expression35 thus mirroring to an extent the position stated in Mr. Mahesh Bhatt and
Kasturi and Sons v. Union of India and Anr36 . Commercial expression is subject to the
four-part test laid down in Central Hudson Gas and Electric Corp v. Public Service
Commission37 . It is briefly stated as follows38:
1). Speech should be accurate commercial speech (defined as speech whose content does
no more than propose a commercial transaction.) that advertises a legal product or service
only. Advertisements that urge or promote the illegal use of legal products cannot be
afforded protection.
To merit constitutional protection commercial expression must be true and accurate,
cannot be misleading. They are misleading if they make false statements or leave the
wrong impression.
2). Legitimate, Government Regulatory Interest must be substantially served by any
regulation or restriction imposed on commercial speech. The government can meet this
criterion by demonstrating an interest in protecting consumers from being misled by
inaccurate information and in preserving the health, safety, morals, and aesthetic quality
of the community.
35
Middleton, Chamberlin; THE LAW OF PUBLIC COMMUNICATION; 339,324; (Second edition, 2002)
36
147 (20080 DLT 561
37
447 U.S. 557, Media L. Rep. (1980)
38
Middleton, Chamberlin; Supra note 35, at 331

23
3).Regulation on commercial speech can be allowed if the regulation directly advances
the governments legitimate interest.
4).A regulation on truthful commercial speech must be narrowly drawn to be
constitutional, even if the regulation advances a legitimate state interest. A regulation on
commercial speech should not be any broader than is necessary to carry out the
regulation.

CONCLUSION :

Thus it is seen that till now commercial speech has not been accorded with the unstinted
protection afforded by Art 19(1)(a) to political speech. It is subjected to the test of public
utility when it has to be decided if a particular specimen of commercial speech can be

24
afforded protection under Art 19(1)(a). It has been judicially established that the
hardiness and verifiability of commercial speech justify lesser constitutional protections
on advertising than on political or social commentary.
The judgment delivered in Tata Press Ltd. v Mahanagar Telephone Nigam Ltd was
important because it first established commercial expression as having a legitimate claim
to protection under Art. 19(1)(a) . By declaring commercial expression as the same as
other expressions protected by Art 19(1)(a) the court tried to safeguard the right to
receive information and to disseminate information and tried to do away with the
condition that to qualify for protection speech should not have business motives. But the
current judicial position in India leans towards the view that commercial expression does
not enjoy the same status as political speech, and enjoys qualified protection of Art 19(1)
(a) as it has to be tested for its public utility before being accorded protection.

BIBLIOGRAPHY

Books:

1). H.M. Seervai; CONSTITUTIONAL LAW OF INDIA: A CRITICAL

COMMENTARY ;Volume 1; (Fourth edition, 1996); N.M. Tripathy Private. Ltd
(Bombay)

2). M.P. Jain; INDIAN CONSTITUTIONAL LAW; (Fifth Edition, 2003); Wadhwa and
Co. (New Delhi)

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3). D.D. Basu; COMMENTARY ON THE CONSTITUTION OF INDIA;(8th Edition,
2008); LexisNexis (New Delhi)

4). M.P. Singh; V.N. SHUKLAS THE CONSTITUTION OF INDIA; (Ninth edition,
1994); Eastern Book Company (Allahabad).

5). Middleton, Chamberlin; THE LAW OF PUBLIC COMMUNICATION; (Second

edition, 2002); Longman (New York)

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