Right to advertise (commercial speech)

Right to advertise (commercial speech): As per the dictionary meaning, the expression "advertise" means, to draw attention to, or describe goods for sale, services offered, etc., through any medium, such as newspaper, television or other electronic media, etc., in order to encourage people to buy or use them. In other words, it is to draw attention to any product or service. "Advertisement" is a public notice, announcement, picture in a newspaper or on a wall or hoarding in the street etc., which advertises something. In short, it is to advert attention to something and in the commercial sense, to draw attention to goods for sale or services offered. In that sense, an advertisement is commercial speech. A glimpse of the following cases would be useful: 35 (i) In Hamdard Dawakhana (Wakf) Lal Kuan vs. Union of India, A.I.R 1960 SC 554 (“Hamdard Dawakhana”) this Court held that an advertisement is a form of speech, but its true character is reflected by the object for the promotion of which it is employed. However, this Court qualified its observations with the caveat that when advertisement takes the form of 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 the commendation of the efficacy, value and importance of the product it seeks to advertise. In the said case, this Court did not recognize commercial speech on par with other forms of speech by holding that it did not have the same value as political or creative expression. That broadly, 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, but not every advertisement is a matter which comes within the scope of freedom of speech, nor can it be said that it is an expression of ideas. In every case, one has to see what is the nature of advertisement and what is the business/commercial activity falling under Article 19(1)(g) it seeks to further. 36 In the aforesaid case, what was challenged was the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. It was held that the object of the Act was the prevention of selfmedication and self-treatment by prohibiting advertisements, which may be used to advocate the same or which tended to spread the evil. It was further held that the advertisements of Hamdard Dawakhana, appellant in the said case, were relating to commerce or trade and not propagation of ideas. Such advertising of prohibited drugs or commodities the sale of which was not in the interest of the general public, cannot be "speech" within the meaning of freedom of speech and would not fall within Article 19(1)(a). It is therefore evident that this Court in the said case placed weight on the aspect as to whether, the advertisement sought to be protected, did in fact constitute ‘propagation of ideas.’ The true content and object of the material sought to be propagated/circulated was to be assessed, in order to declare whether such content would enjoy the protection of Article 19(1)(a). (ii) Subsequently, in Indian Express Newspaper (Bombay) Pvt. Ltd. vs. Union of India, (1985) 1 SCC 641 (“Indian Express Newspaper (Bombay) Pvt. Ltd.”), this Court considered the decision in Hamdard Dawakhana and 37 observed that the main plank of said decision was the type of advertisement or the content thereof and that particular advertisement did not carry with it the protection of Article 19(1)(a). It was further clarified that the observations made in Hamdard Dawakhana are too broadly stated. That all commercial advertisements cannot be denied the protection of Article 19(1)(a) of the Constitution merely because they are issued by businessmen. (iii) Subsequently, in Tata Press Limited vs. Mahanagar Telephone Nigam Limited, (1995) 5 SCC 139 (“Tata Press Limited”), this Court clarified that commercial speech, which is entitled to protection under the First Amendment in USA is also protected under Article 19(1)(a) of the Indian Constitution. However, in the USA, the State was completely free to recall commercial speech which is false, misleading, unfair, deceptive and which proposes illegal transactions in USA. But, under the Indian Constitution, commercial speech which is deceptive, unfair, misleading and untruthful, would be hit by Article 19(2) of the Constitution and can be regulated/prohibited by the State.