CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

TELECOMMUNICATION, PRESS AND MEDIA

LAWS

Project on:
RIGHT TO ADVERTISE COMMERCIAL SPEECH

Submitted To: Dr. Ajay Kumar Submitted By: Yashika

(Faculty for Press & Media Law) Roll No: 1189

5th Year, IXth Semester

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 ACKNOWLEDGEMENT

The present project on the “RIGHT TO ADVERTISE COMMERCIAL SPEECH ” has been able
to get its final shape with the support and help of people from various quarters. My sincere
thanks go to all the members without whom the study could not have come to its present state. I
am proud to acknowledge gratitude to the individuals during my study and without whom the
study may not be completed. I have taken this opportunity to thank those who genuinely helped
me.

With immense pleasure, I express my deepest sense of gratitude to Dr. AJAY KUMAR, Faculty
for PRESS & MEDIA LAWS , Chanakya National Law University for helping me in my project.
I am also thankful to the whole Chanakya National Law University family that provided me all
the material I required for the project. Not to forget thanking to my parents without the co-
operation of which completion of this project would not had been possible.

I have made every effort to acknowledge credits, but I apologize in advance for any omission
that may have inadvertently taken place.

Last but not least I would like to thank Almighty whose blessing helped me to complete the
project.

I thank all of them !

YASHIKA
R.No.1189, Sem IX
B.A.L.L.B. (H)

Method of Research:

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The method adopted in making this project is the Doctrinal Method of research. Doctrinal Study
basically deals with theoretical study which includes use of Journals, Articles, Newspapers,
Websites, Books etc. which shows in itself the very pattern of study.
This method of study is adopted because it is less exhaustive, less time consuming and most
importantly it deals with library study in general. And as a matter of fact, it is one of the best
methods to be adopted so as to get authentic material and provides numerous solutions to the
problems.

Aims and Objectives:

The aim of the project is to present a detailed study on the right to advertise commercial speech
in accordance with the constitution of India with relevant case laws.

Scope and Limitations:

Though this is an immense project and pages can be written over the topic but because of certain
restrictions and limitations I was not able to deal with the topic in great detail. The point on
which special emphasis has been given is in this research.

Sources of Data:

PRIMARY SOURCE – The Constitution Of India, 1950, Foreign Relations Act,1932,

Contempt of Courts Act, 1971, Telegraph Rules, 1951, Indian Pebal Code, 1860.

The following SECONDARY SOURCES of data have been used in the project-

1. Books

2. Websites

3. Articles

Hypothesis

 Whether Press is a citizen?

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 TABLE OF CONTENTS

1. RESEARCH METHODOLOGY...............................................................pg no. 3

2. INTRODUCTION.....................................................................................pg no.5-7
3. RESTRICTIONS ON OFFENSIVE ADVERTISING...............................pg no.8-11
4. LANDMARK CASE LAWS.....................................................................pg no.12-16
5. WHETHER PRESS IS A CITIZEN..........................................................pg no.17-19
6. CONCLUSION & SUGGESTION...........................................................pg no.20-21

BIBLIOGRAPHY.......................................................................................pg no. 22

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 CHAPTER I : INTRODUCTION

Speech is God’s gift to mankind. 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. 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” proclaims the Universal Declaration Of Human Rights (1948). The people of India
declared in the Preamble of the Constitution, which they gave unto themselves their resolve to
secure to all the citizens liberty of thought and expression. This resolve is reflected in Article
19(1)(a) which is one of the Articles found in Part III of the Constitution, which enumerates the
Fundamental Rights.1

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)2.

The judiciary has been enlarging the area covered by the fundamental right to freedom of speech
and expression. Freedom of speech and expression is a vital feature that a democracy runs with.
For any democracy to thrive, people must be given the liberty to express their feeling without
restriction. This very important feature of the freedom of speech and expression is enshrined to
the Indian citizens by Article 19(1)(a) of the Constitution of India. It provides that all citizens
irrespective of colour, creed and religion have the right to raise their voice in matters of
importance or otherwise without any restriction within or without. This freedom comes in for the
assumption that rationality of men comes above everything else, and every individual, by his/her
own discretion and wisdom knows what is good or bad.3

1
Dheerendra Patanjali, “Freedom of Speech and Expression, India v America - A Study”.
2
The Constitution of India, 1950.
3
Krishna Pal Malik, “Right to Information” Allahabad Law Agency, Faridabad, 2013, p. 15

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A constitutional provision is never static; it is ever evolving and ever changing and, therefore,
does not admit of a narrow, pedantic or syllogistic approach. The constitution makers employed
a broad pharaseology while drafting the fundamental rights so that they may be able to cater to
the needs of a changing society. Therefore, constitutional provisions in general and fundamental
rights in particular must be broadly construed unless the context otherwise requires. The scope
and ambit of such provisions, in particular the fundamental rights, should not be cut down by too
astute or too restricted an approach.4 While discussing the scope of freedom of speech and
expression the Supreme Court at many times has said that the words freedom of speech and
expression must be broadly constructed to include the freedom to circulate one’s views by words
of mouth or in writing or through audio-visual instrumentalities. It therefore, includes the right to
propagate one’s views through the print media or through any other communication channel e.g.
the radio and the television. 5 The Court held that these rights are great and basic rights which are
recognised and guaranteed as the natural rights and inherent in the status of a citizen in a free
country.6

Advertising communication is a mix of arts and facts subservient to ethical principles. In order
to be consumer-oriented, advertisement will have to be truthful and ethical. It should not mislead
the consumer. If it so happens, the credibility is lost.

In order to enforce an ethical regulating code, the Advertising Standards Council of India was

set up. Inspired by a similar code of the Advertising Standards Authority (ASA) UK, ASCI
follows the following basic guidelines in order  to achieve the acceptance of fair advertising
practices in the interest of the consumer:

4
Sakal Paper (P) (Ltd. v. Union of India, (1962) 3 SCR 842:AIR 1962 SC 305. Referred to Dennis v. United States,
341 US 494; Joseph Burstyn, Inc. v. Wilson, 343 US 495 and Mutual Film Corporation v. Industrial Commission of
Ohio, 236 US 230.
5
Arashdeep Kaur, “Article 19 Protection of Certain Rights regarding Freedom of Speech etc” .
6
State of West Bengal v. Subodh Gopal Boss and Others, AIR 1954 SC 92.

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 To ensure the truthfulness and honesty of representations and claims made by
advertisements and to safe guard against misleading advertising;

 To ensure that advertisement are not offensive to generally accepted standards of public
decency;

 To safeguard against indiscriminate use of advertising for promotion of products which

are regarded as hazardous to society or to individuals to a degree or of a type which is
unacceptable to society at large; and

 To ensure that advertisements observe fairness in competition so that the consumers need
to be informed on choices in the market places and canons of generally accepted competitive
behaviour in business are both served.7
 

7
Accessed from www.jstor.com on 25.8.2018.

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 CHAPTER II : RESTRICTIONS ON OFFENSIVE ADVERTISING

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so

also it is necessary to place some curbs on this freedom for the maintenance of social order. No
freedom can be absolute or completely unrestricted.8 Article 19(2) specifies the grounds to which
reasonable restrictions on the freedom of speech and expression can be imposed:

a) Security of State: Under Article 19(2) reasonable restrictions can be imposed on freedom of
speech and expression in the interest of security of State. The term ‘security of state’ refers only
to serious and aggravated forms of public disorder e.g. rebellion, waging war against the State,
insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly,
riot, affray. While, speeches or expressions on the part of an individual, which incite to or
encourage the commission of violent crimes, such as murder, are matters which would
undermine the security of State.9

b) Friendly relations with Foreign States: This ground was added by the Constitution (First
Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious
propaganda against a foreign friendly state, which may jeopardise the maintenance of good
relations between India and that State. No similar provision is present in any other Constitution
of the World. In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by
Indian citizens against foreign dignitaries.

c) Public Order: This ground was also added by the Constitution (First Amendment) Act, 1951.
The concept of ‘public order’ is wider than ‘security of state’. 10 ‘Public order’ is an expression
of wide connotation and signifies that state of tranquility which prevails among the members of
political society as a result of internal regulations enforced by the Government which they have
established. Public order is something more than ordinary maintenance of law and order. ‘Public

8
M.P. Jain, “Indian Constitutional Law” Lexis Nexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 1104
9
State of Bihar v. Shailabala Devi, AIR 1952 SC 329.
10
Romesh Thappar v. State of Madras, AIR 1950 SC 124.

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order’ is synonymous with public peace, safety and tranquility. 11 The test for determining
whether an act affects law and order or public order is to see whether the act leads to the
disturbances of the current of life of the community so as to amount to a disturbance of the
public order or whether it affects merely an individual being the tranquility of the society
undisturbed.12

d) Decency or Morality: These are terms of variable content having no fixed meaning for ideas
about decency or morality; vary from society to socisty and time to time depending on the
standards of morals prevailing in the contemporary society. 13 Thus, words ‘morality’ or
‘decency’ are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide
instances of restrictions on the freedom of speech and expression in the interest of decency or
morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in
public places.14

e) Contempt of Court: Restriction on the freedom of speech and expression can be imposed if it
exceeds the reasonable and fair limit and amounts to contempt of court. It cannot be held as law
that in view of the constitutional protection of freedom of speech and expression, no one can be
proceeded with for the contempt of court on the allegation of scandalising or intending to
scandalise the authority of any Court.15 Section 2(a) of the Contempt of Courts Act, 1971,
provides that ‘contempt of court’ may be either ‘civil contempt’ or ‘criminal contempt’.

f) Defamation: A statement, which injures a man’s reputation, amounts to defamation.

Defamation consists in exposing a man to hatred, ridicule, or contempt. According to Winfield 16,
defamation is the publication of a statement which reflects on a person’s reputation and tends to
lower him in estimation of right thinking members of society generally or tends to make them
shun or avoid him. The civil law relating to defamation is still uncodified in India and subject to
certain exceptions. Section 499 of the Indian Penal Code, 1860, defines the offence of

11
Supdt. Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
12
Collector & District Magistrate v. S. Sultan, AIR 2008 SC 2096.
13
M.P. Jain, “Indian Constitutional Law” Lexis Nexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 1109.
14
Ranjit Udeshi v. State of Maharashtra, AIR 1965 SC 881.
15
Re: Arundhati Roy, AIR 2002 SC 1375.
16
Winfield and Jolowicz on Tort, 274 (1979).

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 defamation. It recognises both slander and libel. g) Incitement to an offence: This ground was
also added by the Constitution (First Amendment) Act, 1951.
Sedition: It should be noted that the sedition is not mentioned in clause (2) of Article 19 as one
of the grounds on which restrictions on freedom of speech and expression may be imposed. As
understood by English law, sedition embraces all those practices whether by words, or writing
which are calculated to disturb the tranquility of the State and lead ignorant person to subvert the
government. The Supreme Court held that section 124-A of the Indian Penal Code, 1860 was
limited to acts involving an intention or a tedency to create disorder or disturbance of law and
order or incitement to violence and was not violative of Article 19(1)(a) read with Article 19(2)
of the Constitution.17

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.

 Advertisements of two underwear ads were banned due to vulgarity and indecency.
Objectionable content in ad is usually a reason for taking it off channels.

Freedom of speech and expression is a natural right guaranteed under the Article 19 (1) (a) of the
Constitution of India. Freedom of speech and expression implies the right to express one’s
thoughts and ideas freely via any medium, such as gestures, signs, verbal communication, print
media, radio or television.18

17
Kedar Nath v. State of Bihar, AIR 1962 SC 955.
18
Kent Greenawalt, “Free Speech Justifications” in Mahendra P. Singh (eds.), Comparative Constitutional Law,
Eastern Book Company, Lucknow, 2011, p. 369

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Through several landmark judgments, the Supreme Court has broadened the scope of the right to
freedom of speech and expression. It has held that the government has no monopoly over the
electronic media. Further it has ruled that forms of commercial speech, such as advertisements
are included in the purview of this right called freedom of speech and expression. However, the
court has mentioned that the government is authorized to regulate commercial advertisements. It
can restrict deceptive, unfair, false and misleading advertisements.19

In the advertising and media industry, a self-regulatory guideline of code and conduct is a self-
imposed discipline, whose primary objective is to monitor and prescribe the advertising
standards for public interest. This system complements government legislation and regulations as
well. As the categories of sensitive advertisers are constantly increasing; consumer groups,
governments and regulators became more cautious to take lively interest. Monitoring and
voluntary self-regulations in advertising, allow reasonable freedom of speech and expression.
The members of Communication Council should be aware about the importance of self-
regulation.

CHAPTER III : LANDMARK CASE LAWS

19
The Framing of India’s Constitution-Select Documents, Universal Law Publishing Co. Pvt. Ltd., New Delhi,
2012, Vol.II, p. 48.

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In a landmark case of Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd,20, the litigant –
Mahanagar Telephone Nigam Ltd (MTNL) – is a public sector company and a licensee within
the meaning of the Indian Telegraph Act, 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 monopoly in 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 Hamdard Dawakhana v. Union of India21, the Supreme Court was faced with the question as
to whether the Drug and Magic Remedies Act, 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 of Article
19(1)(a).

In Hamdard Dawakhana  v. Union of India  (1959) and Tata Press  v. MTNL(1995); and the
different decisions in these two cases mark an interesting shift in the Court’s jurisprudence over
36 years.

20
(1995) 5 SCC 139.
21
AIR 1960 SC 554.

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In Hamdard Dawakhana, the constitutionality of Ss. 3 and 8 of the Drugs and Magical Remedies
Act was impugned. The stated objective of the Act was to prohibit “misleading” advertisements
that claimed certain drugs had magical or other remedies, arising out of a concern that a number
of people were using these fake drugs for the purposes of self-medication, and worsening their
own health. It was argued that this prohibition fell foul of Article 19(1)(a). The Court found on
fact that the evils of self-medication were indeed prevalent in India, and that there was a causal
link between “unethical” advertisements, and physical harm caused due to self-medication. It
then went on to hold that:

“An advertisement is no doubt a form of speech but its true character is reflected by the object
for the promotion of which it is employed…. when it takes the form of a commercial
advertisement which has an element of trade or 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 as in the present case the commendation of the
efficacy, value and importance in treatment of particular diseases by certain drugs and
medicines. In such a case, advertisement is a part of business… and…[has] no relationship with
what may be called the  essential concept of the freedom of speech. It cannot be said that the
right to publish and distribute commercial advertisements advertising an individual’s personal
business is a part of freedom of speech guaranteed by the Constitution.”  22

This statement requires close scrutiny. At the very beginning, the Court concedes that an
advertisement is a “form of speech”, but goes on to hold – nonetheless – that the advertisements
in question are not protected by Article 19(1)(a) because they have “no relationship with the
essential concept of the freedom of speech.” This is an unambiguous affirmation of the
instrumental theory of free speech: speech is valuable not in itself and for itself, but insofar as it
is found to bear a relationship with the propagation of ideas. Admittedly, the Court’s choice of
phrase here is much broader than the democratic justification advanced in Sakal (surely,
pornography conveys a social idea!) – but it remains, nonetheless, an instrumental justification.

22
Accessed from https://speakingthreads.com/2016/04/28/advertisements-as-commercial-speech/ on 1-9-2018.

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The phrase “has no relationship with”, when read in conjunction with “essential concept of”,
raises a further interesting possibility; “relationship” is not a zero-sum concept, and “essential
concept” suggests the idea of gradation. Is the Court implicitly saying, therefore, that different
forms of speech bear differing degrees of relationship with the essential concept (propagation of
ideas), and the level of protection afforded to a particular instance of speech depends upon its
proximity to the essential concept? Is the Court proposing hierarchies of speech, with different
value attaching to each level? This position has been occasionally endorsed in the United States
(e.g., the banning or regulation of “adult content” requiring a lower burden of justification from
the State – see US  v. Playboy). The differences between Article 19(1)(a) and the First
Amendment (in particular, the existence of Art 19(2)) make any direct analogies risky at the best
of times, but the question is open.

We now come to the MTNL case.  Rule 458 of the Telegraph Rules, 1951, prohibited the
publication of a list of telephone subscribers without the permission of the Telegraph Authority.
Tata Press was engaged in publishing “Yellow Pages” – that is, a compilation of advertisements
given by businessmen, traders and other professionals. It was alleged that this violated Rule 458,
since MTNL’s (the government body) telephone directory included something almost identical.
The High Court found that, in substance and in purpose, the Yellow Pages amounted to a
telephone directory, and therefore their publication contravened Rule 458.23

It remained to distinguish Hamdard Dawakhana. Relying upon Indian Express

Newspapers  v. Union of India, the Court held that the Hamdard Dawakhana decision was
limited only to the specific type of advertisement at issue in that case, i.e., misleading
advertisements for drugs – and was not authority for a general proposition excluding commercial
speech from constitutional protection.

The Court then found three justifications for protecting commercial speech, First, advertisements
were essential towards keeping prices down in a market economy; secondly, advertisements
provided a crucial source of revenue to newspapers, and a free media was the life-blood of
democracy; and thirdly, by maintaining the free flow of information, advertisements were

23
Ibid.

14
necessary for consumers to make an informed choice . Reading Rule 458 of the Telegraph Rules
in light of these findings, it held in favour of Tata Press.24

Two points may be made here. First, the Court is careful not to depart from the democratic
justification of Sakal Papers. Each of the three reasons are brought back – if in a slightly
circuitous way – to democracy (although perhaps controversially, the Court seems to have
adopted, without argument, a conception of democracy that makes it synonymous with a market
economy). As in Hamdard Dawakhana, however, the scope has been considerably broadened
because, admittedly, commercial speech has nothing to do with social, political or cultural ideas.
This has been done by allowing an indirect causal connection between the impugned speech and
the overall maintenance and sustenance of democracy. It is an open question, then, whether the
democratic justification – when read so broadly – provides any kind of limiting condition at all.
To return to the vexing question of obscenity – it is entirely possible to argue – as Dworkin
would – that democracy requires government to accord equal concern and respect to all citizens,
and that this condition can be fulfilled only by allowing everyone an equal opportunity to
contribute to the society’s moral environment. In other words, contrary to Hamdard Dawakhana,
19(1)(a) excludes no form of speech.25

This provides a segue into the second point. There is an undeniable conflict between Hamdard
Dawakhana  and Tata Press. The former made it clear that misleading advertisements were not
protected by Article 19(1)(a), whereas the latter makes it equally clear that they are, and are
further hit by Article 19(2). Hamdard Dawakhana was a constitutional bench decision. Tata
Press was decided by a bench of two judges. There is no doubt the the finding in question was
part of the ratio in Hamdard Dawakhana (while the observation that commercial speech does
not fall within Art 19(1)(a) was not). The position of law, therefore, would seem to be that
there are forms of speech that are excluded from 19(1)(a) protection, such as those proscribed
in Hamdard Dawakhana.26
24
Accessed from http://www.legaleraonline.com/articles/advertisement-and-freedom-of-speech on 1.9.2018.
25
B.P. Srivastava, “Constitutional Provisions and Judicial Pronouncements on Freedom of Information” Orissa
Review, November 2006, p. 87-93. Retrieved from
http://shodhganga.inflibnet.ac.in/bitstream/10603/102441/9/09_chapter-2.pdf 24-08-2018.
26
Ibid.

15
In either event, these cases demonstrate a good example of soft legal paternalism at work . For
the purposes of argument, let us ignore the interests of the advertisers, and focus on consumers.
Presumably, consumers read advertisements (and take medicines) because they wish to be
accurately informed (and get well). Misleading advertisements (and fake medicines) are
therefore contrary to their interest, and they would hypothetically endorse governmental
measures that corrected errors of this sort. Unlike Ranjit Udeshi, therefore, where interference
was with questions of value and the ground rules of judgment, here governmental interference
relates to questions of fact and evidence, and is thus easier to justify.

CHAPTER III : WHETHER PRESS IS A CITIZEN

16
Article 19(1)(a) of the Constitution guarantees freedom of speech and expression only to human
beings who are citizens and non-citizen nationals and foreigners do not enjoy this right. Rather
juristic persons, corporations, societies, associations are not citizens. This right is available to
natural human beings having citizenship of India. Whereas, Article 19(1)(a) gives freedom to
press on the plea that press is constituted of citizens.27

The Supreme Court also dealt with the contention that newsprint policy does not directly deal
with the fundamental right mentioned in Article 19(1)(a). It was also contended that regulatory
statutes which do not control the content of speech but incidentally limit the ventured exercise
are not regarded as a type of law. Any incidental limitations or restrictions on freedom of speech
are permissible as the same is essential to the furtherance of important governmental interest in
regulating freedom of speech. The Supreme Court negatived the said contention and Justice
Nanabhoy Palkhivala said that:

“The test of pith and substance of the subject matter and of direct and incidental effect of the
legislation are relevant to the questions of legislative competence but they are irrelevant to the
question of infringement of fundamental rights. In our view this is a sound and correct approach
to interpretation of legislative measures and State action in relation to fundamental rights. The
true test is whether the effect of the impugned action is to take away or abridge fundamental
rights. If it be assumed that the direct object of the law or action has to be direct abridgement of
the right of free speech by the impugned law or action it is to be related to the directness of effect
and not to the directness of the subject-matter of the impeached law or action. The action may
have a direct effect on a fundamental right although its direct subject-matter may be different.”28

Although Article 19(1)(a) does not mentioned the freedom of the press, it is the settled view of
the Supreme Court29 that freedom of speech and expression also includes freedom of the press
and circulation, i.e. the right to print and publish what one pleases, without any previous
permission. Therefore, the imposition of pre-censorship on publication is violative of the
freedom of the press, unless justified under clause (2) of Article 19.

27
G.P. Tripathi, “Constitutional Law: New Challenges” Central Law Publications, Allahabad, 2013, p. 368.
28
Sakal Papers Pvt. Ltd. v. Union of India, AIR 1962 SC 305.
29
Bennett Coleman & Co v. Union of India, AIR 1973 SC 106.

17
 In the case of Brij Bhushan v. State of Delhi30 in pursuance of section 7(1)(c) of the East Punjab
Public Safety Act, 1949, as extended to the Province of Delhi, the chief Commissioner of Delhi
issued an order against the petitioner, the printer, publisher and editor of an English weekly ‘the
Organiser’ published from Delhi, directing them to submit, for scrutiny in duplicate before
publication till further orders, all communal matters and news and views about Pakistan
including photographs and cartoons other than those derived from official sources or supplied by
the news agencies. The Supreme Court in its majority decision struck down the said order as
violative of Article 19(1)(a) of the Constitution.

In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India31 the Supreme Court after
pointing out that communication needs in a democratic society should be met by the extention of
specific rights e.g., the right to be informed, the right to inform, the right to privacy, the right to
participate in public communications, the right to communicate, etc., proceeded to observe as
follow:
“In today’s free world freedom of Press is the heart of social and political intercourse. The press
has now assumed the role of the public educator making formal and non formal education
possible in large scale particularly in the developing world where television and other kinds of
modern communication are not still available for all sections of society. The purpose of the press
is to advance the public interest by publishing facts and opinions without which a democratic
electorate cannot make responsible judgments. Newspaper being surveyors of news and views
having a bearing on public administration very often carry material which would not be palatable
to Governments and other authorities. The authors of the article which are published in the
newspapers have to be critical of the action of the Government in order to expose its weaknesses.
Such articles tend to become an irritant or even a threat to power.”

The Court pointed out that the freedom of speech and expression guaranteed under Article 19(1)
(a) of the Constitution is not for the benefit of the press as it is for the benefit of the public. The
people have a right to be informed of the developments that take place in a democratic process
and the press plays a vital role in disseminating this information. Neither the Government nor
30
AIR 1950 SC 129.
31
AIR 1986 SC 515:(1985) 2 SCR 287:(1985) 1 SCC 641.

18
any instrumentality of the Government or any public sector undertaking run with the help of
public funds can shy away from articles which expose weaknesses in its functioning and which
in given cases pose a threat to their power by attempting to create obstacles in the information
percolating to the members of the community.32

In series of cases, the Supreme Court struck down the pre-publication ban on newspapers etc. In
Reliance Petrochemical Ltd. v. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd.33
the Supreme Court ruled that the pre-publication ban even under a Court injunction could be
justified in the interest of justice only when there was a clear and imminent danger to the
administration of fair justice and not otherwise. Thus, a “free press” which is neither directed by
the executive nor subjected to censorship, is a vital element in a free State. The success of
democracy depends upon free, fair, honest and independent press.

CHAPTER IV : CONCLUSION & SUGGESTION

In this age of media explosion, one cannot simply remain confined to the boundaries of the
traditional media. The media world has expanded its dimensions by encompassing within its

32
Ibid.
33
AIR 1989 SC 190. Also see State through Supdt. Central Jail, New Delhi v. Charulata Joshi, AIR 1999 SC 1379
and T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361.

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orbit, the widening vistas of cyber media etc. As a consequence, the laws governing them are
also numerous. It is not within the scope of this Article to deal with the whole subject of media
laws, but this Article makes a person aware of the various important legislations affecting the
various branches of Media Communication, making him aware of his rights and facilitating him
to exercise them within the framework of law existing in India and in the end furthering the
cause of “Freedom Of Speech And Expression” and“Dissemination of Knowledge”.

With the advent of globalisation and cut throat competition, India Inc. is exhibiting aggressive
promotion of their products and services. In the bargain, even the literate consumer may be
forced to believe what the advertisers say. The situation worsens when regulations controlling
the advertisements are itself nascent, scattered and lacking the deterrence. In order to strike this
balance of freedom of advertisement where the advertiser is given the qualified protection to
advertise and the consumer on the other hand is benefited and guided to make an intellectual
choice; there is a clear need of a single integrated law which shall combine the scattered various
regulations which fail to display any stringent enforcement mechanism, thereby ruling out any
deterrent effect on India Inc.

There are many legislations in India which prohibit advertisements of certain class of goods and
services like advertisements of tobacco and liquor is banned. Certain professions like doctors,
lawyers are not allowed to engage in advertisements. At times, an advertisement in a newspaper
or radio would have been allowed but the same advertisement on billboard may be restricted
because the street car audience is a forced captive audience but the same audience can choose to
read or hear the advertisement on another medium. Where the commercial activity is itself
illegal, the advertisement of which is bound to be illegal like gambling or prostitution. Broadly,
advertisements which are illegal, defamatory, obscene, undermining the respect of judiciary,
inciting someone to commit a crime etc. are prohibited by various statutes.

Thus, advertisement as a commercial speech has two facets: on one hand, the Constitution gives
right to advertise because public at large benefits by the dissemination of information. On the
other hand, the public at large has the right to receive the information, therefore, there are other
statutes that impose reasonable restrictions on certain advertisements. Also, content regulation of

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commercial speech is warranted to prevent false, deceptive or misleading information from being
disseminated to public.

Advertisement is a medium for merely identifying and describing the quality of goods with the
sole motto to propagate and draw attention to the article to be sold thereby inducing its purchase.
This is definitely a commercial aspect which draws great importance since it disseminates
information about the article sold, at what price and the purpose of the same. In a democratic
country, free flow of commercial information should be encouraged as it furthers the right of
every citizen to be informed.

To determine if a particular speech is commercial or not, we need to answer only one question;
whether the speech proposes nothing but a commercial transaction. Its true character or intention
is reflected by the object for the promotion of which it is employed. This commercial objective
clearly classifies advertisement as a commercial speech.

But since advertisement is a speech which is backed by the motive of influencing ostensibly a
consumer's purchasing habit and which may be harmful to the public or, may be against public
decency, may be defaming or unlawful; is hence subjected to stringent standards by the Courts.

BIBLIOGRAPHY

COMMENTARY :-
 Durga Das Basu; Commentary on the Constitution of India, 8th Edition 2007.

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BOOKS :-

 G.P. Tripathi, “Constitutional Law: New Challenges” Central Law Publications, Allahabad, 2013.

 M.P. Jain, “Indian Constitutional Law” Lexis Nexis Butterworths Wadhwa Nagpur, Gurgaon,
2012.

 B.P. Srivastava, “Constitutional Provisions and Judicial Pronouncements on Freedom of

Information” Orissa Review, November 2006.

 The Framing of India’s Constitution-Select Documents, Universal Law Publishing Co.

Pvt. Ltd., New Delhi, 2012

ESSAY:-
 Ram Jethmalani & D. D. Chopra; Media Law, first edition. c Krishnaprasad K. V. in his
Essay "Unveiling the rights: Corporate Citizenship in India Post State Trading
Corporation"

WEBSITES:-
 https://indconlawphil.wordpress.com/tag/commercial-speech-2/
 http://www.legaleraonline.com/articles/advertisement-and-freedom-of-speech
 www.jstor.com
 http://shodhganga.inflibnet.ac.in/bitstream/10603/102441/9/09_chapter-2.pdf

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