Why Right to Freedom of Advertisements & Broadcast under Art.19? 3 Supreme Court Judgments

Why Right to Freedom of Advertisements & Broadcast under Art.19? 3 Supreme Court Judgments

Dear readers, this article & others (Part-A-C & E-F) on “Freedom of Speech (Art.19)” & SC Judgments on Freedom of Advertisements as Commercial Speech under Art.19, Hamdard Dawakhana Pvt. Ltd. v. Union of India (1960), Tata Press Ltd.  v. Mahanagar Telephone Nigam Ltd (1995), SC Judgments on Right to Broadcast, Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana (1988), fundamental right, Article 19(1) (a)  are informative with facts and will educate general public, students, teachers, and help competitive aspirants in preparation of IAS, PCS, CLAT, AIBE, UGC/NET, and other exams.

Freedom of speech and expression is a natural and legal right of an individual to express one’s opinions, ideas & information freely and receive the same from others, without interference, through any means, media, and mode”.   __ Dr. Md. Usmangani Ansari                                                                                           

The Constitution is not an instrument for the Government to restrain the people, it is an instrument for the people to restrain the Government”. –Patrick Henry (1736-1799)

_________________________________________________________

Read related articles:

  1. PIL Part-1: What is Public Interest Litigation (PIL)? 
  2. PIL Part-2: PIL  Filer, Importance, Weakness, Development Phases, and Growth of PIL in India

A. SC Judgments on Freedom of Advertisements as Commercial Speech under Art.19

The Supreme Court and High Courts with the help of their judicial creativity, wisdom, and craftsmanship have widened the scope of freedom of speech and expression by adding many elements through judgments on A. freedom of advertisement and B. right to broadcast.

A. Freedom of Advertisement

In India, there is no direct relation to constitutional protection guaranteed to commercial advertisements. This issue has been debated in India right from 1960 in the courts. The opinions have been changed by the courts after realizing that there should be no restraint to the dissemination of information. And the Supreme Court of India has confirmed it that advertisements, regarded as commercial speech, form part of the fundamental right to freedom of speech and expression recognised under Article 19(1)(a) of the Constitution of India in Tata Press v. MTNL (1995) case. The Court further held that as advertising is one of the elements of the right to information, it facilitates the dissemination of information about sellers and their products.

8. Hamdard Dawakhana Pvt. Ltd. v. Union of India (1960)

It is the first case19 that came up before the Supreme Court in which Constitutional protection to commercial advertisements was debated and decided. In this case constitutional validity of “Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954” was challenged on the grounds that unreasonable restrictions have been imposed on freedom of speech.

In this case, the Hon’ble Supreme Court dealt with “advertising of prohibited drugs and commodities”. The Court concluded that the sale of prohibited drugs was not in the interest of the general public and as such could not be ‘speech’ within the meaning of freedom of speech and expression under Article 19(1) (a) of the Constitution. The Court further held 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. The Court argued that when advertisement takes the form of 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 the propagation of ideas— social, political or economic or furtherance of literature or human thought; but, as in the present case, advertisement is a part of the business even though as described its creative part and it was being used for the purpose of furthering the business which has no relationship with the concept of the freedom of speech.

9. Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd (1995)

In this case20, the Supreme Court held that a commercial advertisement or commercial speech was also a part of the freedom of speech and expression under Article 19(1) (a) of the Constitution in the following manner:

“Advertising which is no more than a commercial transaction is nonetheless dissemination of information regarding the product advertised. The public at large is benefitted by the information made available through the advertisement. In a democratic economy, the 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.”

However, the “commercial advertisement or commercial speech” which is deceptive, unfair, misleading, and untruthful would be hit by Article 19(2) of the Constitution and can be regulated or prohibited by the State.

B. SC Judgments on Right to Broadcast

The concept of speech and expression has evolved with the progress of technology and includes all available means of expression and communication. This also includes electronic and broadcast media. The right to impart and to receive information through broadcasting media has long been recognized as part of the right to freedom of speech and expression guaranteed under Article 19(1)(a) which can be curtailed only in the circumstances set out in Article 19(2) of the Constitution. It is upheld in Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana4 and LIC of India v. Prof. Manubhai D. Shah cases.

10. Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana (1988)

In this case21, the Supreme Court held that the right of a citizen to exhibit films on the State channel— Doordarshan is part of the fundamental right guaranteed under Article 19(1)(a). In this case, the petitioners challenged the exhibition on Doordarshan of a serial titled Honi Anhonion” on the ground that it encouraged superstitious and blind faith amongst viewers. The petition was dismissed as the petitioner failed to show evidence of prejudice to the public.

Copyright © Writer (Dr. Md. Usmangani Ansari)

_________________________________________________

  1. Hamdard Dawakhana Pvt. Ltd.v. Union of India AIR (1960) SC 554

  20.Tata Press Limited v. Mahanagar Telephone Nigam Limited, (1995) 5 SCC 139

  1. Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana AIR 1642, 1988 SCR Supl. (1) 486

Leave a Reply