FREEDOM OF COMMERCIAL SPEECH AND EXPRESSION UNDER INDIAN CONSTITUTION
– Seemasmiti Pattjoshi
Asst. Prof., Indore Institure Of Law
– Dr. Vivek Singh
Asst. Prof., Indore Institute Of Law
“Give me the liberty to know, to utter, and to argue freely
according to conscience, above all liberties”. –John Milton
“For sweetest thing turn sourest by deeds, Lilies that festers
smell far worse than weeds” – William Shakespeare
Speech is God’s gift for the human society. Through speech a human being conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural right, which a human being acquires on birth. The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restriction, or repression by the government.
The first principle of a free society is freedom of expression of words in an open forum. Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of that particular society and ultimately for that state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation. The people of India declared in the Preamble of the Constitution, which theygave unto themselves their resolve to secure to all the citizens liberty of thought and expression. This resolve is reflected inArticle 19(1) (a) which is one of the Articles found in Part III of the Constitution, which enumerates the Fundamental Rights. The freedom of expression that is enshrined under Art 19(1)(a) take the right to express one’s 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.
Freedom of speech is guaranteed not only by the constitution or statutes of various states but also byvarious internationalconventions like Universal Declaration of HumanRights, European convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly talk about protection of freedom of speech and expression. It is, therefore, a basic right. “Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers” states the Universal Declaration of Human Rights (1948).
1.1 Why to protect freedom of speech:
Freedom of speech offers human being to express his feelings to other, but this is not the only reason; purpose to protect the freedom of speech. There could be more reasons to protect these essential liberties. There are four important justifications for freedom of speech –
1. For the discovery of truth by open discussion
2. Free speech as an aspect of self- fulfillment and
3. For expressing belief and political attitudes
4. For active participation in democracy
Thus we find that protection offreedom of speech is very much essential. Protection of freedom of speech is important for the discovery of truth by open discussion, for self- fulfillment and development, for expressing belief and political attitudes, and for active participation in democracy. The present study is intended to present the constitutional rights of a company which recognize the freedom of speech and expression, the basic fundamentalrights of human being. It is also to be examined that what is judicialtrend in interpreting the freedom of speech and expression under Art 19(1)(a) of Indian Constitution.
The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restriction, or repression by the government. Advertising is a form of communication for marketing and used to encourage or persuade an audience (viewers, readers or listeners; sometimes a specific group) to continue or take some new action. Most commonly, the desired result is to drive consumer behavior with respect to a commercial offering, although political and ideological advertising is also common.
1.2-Right to Advertisement as a Part of Freedom of Speech and Expression:
Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product advertised. Public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of “commercial speech” and when examined from another angle, the public at large has a right to receive the “Commercial speech”. Article (19) (1) (a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfillment has to be guided by the information disseminated through the advertisements. An advertisement giving information regarding a lifesaving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.
Today, new era of advertising has evolved, which is both cost-effective as well as efficient at global level. Online advertising is the fastest growing medium of advertising that has proven its effectiveness and stability in the advertising world. In a developing economy like India, advertising has a profound impact on how people understand life, the world and themselves, especially with regard to their values, choices and behavior.
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 of Art 19(1)(a). In State of Uttar Pradesh v. Raj Narain1, 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 Express2 it has been observed by the bench deciding the case that “We must remember that people at large have a right to 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 in this age on our land underArt. 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 India3 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 4 it has been held that the press is not immune from civillaws 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 India5 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”.
Advertisements do not enjoy protection underArt. 19(1)(a) of Indian constitution: Generally freedom of speech is considered to be almost sacrosanct and enjoys a very high levelof judicialand constitutional protection. In the interests ofa sound, healthyliberaldemocracy 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 inArt 19(2) and those detailed in the preceding chapter of this paper restrictions imposed by a statute cannot have any other grounds. But commercialspeech has not received that kind ofunstinted 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 ofArt 19(1)(a) and Art
19(2) is Hamdard Dawakhana v. Union of India.6
“When it (advertisement) takes the formof 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 furtherance of literature or human thought, but the commendation of the efficacy , value and importance of certain goods.”
This statement forms the bottom 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).
Advertisements do enjoy protection underArt. 19(1)(a) of Indian constitution: The judgment delivered in Tata Press Ltd v. Mahanagar Telephone Nigam Ltd 7 brought about a tectonic shift in the wayfreedom 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.
The appellant in this case (Tata Press Ltd) had contended that “commercialspeech” is protected by Art 19(1)(a) read with Art 19(2) while the respondent’s 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 India that has been discussed in detail in the previous chapter.
“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).
Constitution of India: Restrictions on Offensive Advertisements:
Man as rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals. The guarantee of each of the above right is, therefore, restricted by the Constitution in the larger interest of the community. The right to freedom of speech and expression is subject to limitations imposed under Article 19(2).
Article 19 (2) of Constitution of India provides that the government can impose restrictions on the right to freedom of speech and expression to protect the country’s integrity, security, public order, morality and decency and to prevent contempt of court, vulgarity, incitement to an offence and defamation.
However, advertisers often view these rules and regulations as violating their right to freedom of speech. Some ads, in particular, were considered derogatory and banned by the government, such as:
• A deodorant advertisement that showed a man accompanied by scantily clad women was banned by the government after several complaints were received from viewers about the advertisement being offensive to family viewers.
• A soft drink advertisement that showed a child bringing the drink for the Indian cricket players was banned after complaints from child labor activists.
Constitution of India: Restrictions to Publish Yellow Pages Directory
In a landmark case of Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd, (1995) 5 SCC 139, the litigant – Mahanagar Telephone Nigam Ltd (MTNL) – is a public sector company and a licensee within the meaning ofthe Indian TelegraphAct, 1885. It has telecommunication services in Delhi and Mumbai. The MTNL used to publish and circulate a telephone directory with white pages but after 1987, it started giving contracts to outsiders to publish this directory. Further, the MTNL allowed the contractors to earn revenue by publishing advertisements in the directory.
The Tata Press Ltd also published the Tata Press Yellow Pages. The MTNL and the Union Government filed a case before the Bombay Civil Court that it has a monopolyin printing and publication of list of telephone subscribers and that Tata Press Ltd. has no right to do the same. It was pointed out that Tata Press was violating the provisions of the Indian Telegraph Act, 1885. The court rejected the MTNL plea and an appeal reached the High Court. The High Court ruled in favor of MTNL, following which Tata Press Ltd challenged the High Court’s decision before the Supreme Court. The Supreme Court ruled that the MTNL has no right to hold back Tata Press Ltd. from publishing ‘Tata Yellow Pages.’
In HamdardDawakhana v. Union of India, the Supreme Court was faced with the question as to whether the Drug and Magic RemediesAct, which put restrictions on the advertisements of drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing diseases, was valid as it curbed the freedom of speech and expression of a person by imposing restrictions on advertisements. The Supreme Court held that, an advertisement is no doubt a form of speech and expression but every advertisement is not a matter dealing with the expression of ideas and hence advertisement of a commercial nature cannot fall within the concept ofArticle 19(1)(a).
Advertisements also remind us about many things to do such as to brush the teeth two times a day, use better shampoo for hair falling problem etc. Advertisements makes us aware more about the specifications of the product such as price, features, availability, sources, company name, even ingredients of the product. The importance of advertising is well understood as being an imperative part of a market economy. The importance of advertising as a source of information and education of both products and services available for consumers is undeniable. The issue is to understand that while advertisements are informative and educational it ought not to be untruthfuland misleading for consumers who believe in the authenticity ofthe message and are often lead to buying or investing based on the results or enhancement of investments for which the consumer pays.
Advertising as a “commercial speech” has two facets. Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product- advertised. Public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable.
There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements.
The protection ofArticle 19(1)(a) is available to the speaker as well as to the recipient of the speech. The recipient of “commercial speech” may be having much deeper interest in the advertisement than the businessman who is behind the publication. An advertisement giving information regarding a lifesaving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration. I, therefore, hold that “commercial speech” is a part of the freedom of speech and expression guaranteed under Article 19(1) (a) of the constitution.
BOOKS AND BARE ACTS
• Saharay,H.K., The constitution of India, Eastern law house, 2002
• Datar,ArvindP,Commentary on the constitution of India, Wadhwa, 2007
• De,D J, The constitution of India, Asia law house, 2008
• Jain, M.P., Indian constitutional law, Lexis Nexis, 2010
• Wadhwa,D P, The law of consumer protection, Lexis Nexis, 2009
• Agarawal,V.K., Consumer protection Law and Practice, B.L.H. Publisher 2009
• Ratanlal and Dhirajlal, The law of torts, Lexis Nexis, 2009
• Lakshminath,A, The law of torts. Lexis Nexis, 2007
• Ratanlal and Dhirajlal, The Indian Penal Code, Lexis Nexis, 30th ed.
• Dr. Panday,J N, The Constitution of India, Central law agency, 50th ed.
• Consumer Protection Act,1986.
• The competition Act, 2002
• Information Technology Act, 2000
Articles and Journals:
• Datta,Ameet, ” comparative advertising in India- puff under scruting”, world trademark review,(2010).
• Huston, Julia., ” liability for commercial speech”, ACC, (2010).
• Kaushik, Rajiv, ” commercial advertisement and its status in India”, IJCEM, v. 15 issue. 3 (2012)
• George Cheriyan, Deepak Saxena and Amarjeet Singh, ” study on the status of law enforcement for
misleading advertisements in India and its Impact on consumers”, 2012, giz new Delhi.
• Rajiv Kaushik, ” commercial advertisement and its status in India”, IJCEM, v. 15 issue.3 (2012)
• Rajarshi Banerjee, ” Freedom of commercial advertisement in India”, Accessed 2nd march 2014,
Available from https://www.academia.edu/93863
• DharaDoshi, ” Comparative advertisement product disparagement and trademark infringement”,
Accessed 18th March 2014, Available from http://lawmantra.co.in
• Ankur Mishra, ” Comparative advertising : comparative study on U.S and india”, Nov 2011, Accessed
18th March 2014, Available from http://www.lawyersclubindia.com
• Tripti, ” Advertisement and Freedom of speech and expression” , 2012, Accessed 2nd june 2014,
available at http://www.legalservicesindia.com
• Dr. Hydervali, B., “Dimensions of freedom of speech and expression- issues and challenges”, civil and
military law journal, p at 14., Jan-March 2014.
• www. Manupatra.com
• www. Indiankanoon.com