Seminar Ten- Commercial Speech
ksh...@nujs.edu
THOUGHT PAPER- II
Tata Press Ltd. v. Mahanagar Telephone Nigam Limited and Ors.
KSHITIJ MAHESHWARI
The conflict in this case arose
when Tata Press published a telephone directory called the Tata Pages which was
a compilation of advertisements by businessmen, traders, etc. MTNL objected to
this as it allegedly violated Rule 458 according to which only MTNL could give
permission to publication of any list of telephone subscribers.
In Hamdard Dawakhana, a Constitution bench of the Hon’ble Supreme Court had laid down that an advertisement is a form of free speech but at the same time certain advertisements that were either misleading or that promoted illegal or prohibited commodities, were not free speech as contemplated under Article 19(1)(a). However in Tata Press, (despite being a smaller bench) the Court took a significant deviation from Hamdard and held that commercial speech that was defective, misleading and untruthful would be hit by Article 19(2), as the Indian Constitution had such a provision. Thus effectively the Court meant that even that commercial speech that was defective, misleading, unfair etc. was covered under Article 19(1)(a), only to be later hit by Article 19(2), or that all commercial speech was a part of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. Notwithstanding the fact that this may be more logical an approach, it is in clear contradiction with what was said in Hamdard. Moreover, this approach was justified by going back to the decisions in Express Newspapers and Sakal Papers and amalgamating them with the importance of commercial speech in the growth of the economy in a democracy. Similarly a new principle i.e. the right to freedom of commercial speech and the right to receive commercial speech which is more of an extension of the principle of freedom of speech and the right to receive speech was developed in this case.
On the question of whether the publication of Tata Pages was valid commercial speech under Article 19 of the Constitution, the Court, surprisingly, not only failed to follow what was held in Hamdard, but also did not follow its own findings (as have been summarized above). This is a major flaw in the judgment, where on the one hand the Court held that right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution can only be restricted under Article 19(2) and that the Government could not create a monopoly to deny this right and on the other hand it said that Rule 458 was mandatory and needed to be complied with. As per the observations made by the Court on commercial speech, (and also as what was held in Hamdard) Rule 458 should have been struck down as being in violation of Article 19, since it did not satisfy the burden of reasonable restriction that must be shown to restrict (commercial) speech under Article 19(2). Following which Tata Press should have been allowed to publish paid advertisements as well as unpaid advertisements i.e. in the form of a telephone directory. But the Court without any plausible justification to the argument, proceeded into the needless differentiation between paid advertisements (Yellow Pages) and list of telephone subscribers (White Pages), finally allowing Tata Press to publish the information of traders,etc. only in the form of advertisements and not in the manner as they were published in the MTNL telephone directory i.e. as a list of telephone subscribers.
What can ultimately be concluded from this contradictory judgment is that publishing only a paid advertisement is freedom of (commercial) speech under Article 19.
r.venk...@gmail.com
Thought Paper
Tata Press Ltd. v. Mahanagar Telephone Nigam Limited and Ors
R. Venkatesh
The case concerns the question of whether the yellow pages published by Tata press is in violation of Rule 458 of Indian Telegraph Rules, 1951, which proscribes publication of “any list of telephone subscribers” without the permission of the telegraph authority. After having read the judgment pronounced by J. Kuldip Singh, two observations may be made here. First, the relevance of the judgement in the context of publication of telephone directory will gradually diminish due to obvious technological progress and second, certain observations made by the Court go beyond the needs of the case. Consider the discussion on the applicability of protection of Art. 19(1)(a) with respect to commercial speech. The trial Court, both the benches of the High Court as well as the Supreme Court decided the case solely on the question of whether the yellow pages published by the appellant fall within the definition of “list of telephone subscribers” under Rule 458, wherein they discussed and differentiated the manner of publication of the impugned yellow pages and a telephone directory. Thus, the entire discussion on protection of advertisement under freedom of speech, seems to me wholly irrelevant.
Even though the judgment clarified the applicability of freedom of speech and expression in context of “commercial speech”, one has to be skeptical about the precedentary value of this judgment vis a vis the judgment of the Court in the case of Hamdard Dawakhana, since the former was a three judge bench decision while the latter was that of a constitutional bench. Howsoever contradictory it may sound, the constitutional bench in Hamdard Dawakhana case, while recognizing advertising as a form of speech refused to extend the protection of Art. 19(1)(a) stating that an advertisement in a purely commercial sense is not a speech protected under the aforementioned Article. The Court in Tata press case attempted to reconcile the relationship between commercial speech and freedom of speech by referring to the decision of the Court in Indian Express newspapers case and observed that any speech, be it purely commercial or in interests of society is protected by Art. 19(1)(a). The Court cited various economic and rights based reasons as well as decided cases by the U.S. Supreme Court, to extend freedom of speech to advertisements as well. The Court further held that in case of misleading advertisements (as was the case in Hamdard Dawakhana), the government may restrict freedom of speech under Art. 19(2). Thus, there is a clear conflict between the rulings of Hamdard Dawakhana and Tata press and as the law stands now, the ratio of the former would be binding precedent, i.e. certain forms of speech like misleading advertisements, do not enjoy the constitutionally guaranteed freedom of speech under Art. 19(1)(a).