Commercial Speech and Article 19
The Article 'Commercial Speech and Article 19' by E S Geethika throw light on commercial speech and the disparity in the degree of protection given to commercial speech under Article 19 of the Indian Constitution.
The Article 'Commercial Speech and Article 19' by E S Geethika throw light on commercial speech and the disparity in the degree of protection given to commercial speech under Article 19 of the Indian Constitution. The author has explained with the help of case laws to make it easy for the readers to understand. The difference of opinion on whether commercial speech should be protected under Article 19 of the Indian Constitution is a transitional situation in Indian courts. The author wishes to see positive action in the form of protection to commercial speech under Article 19 and it has become an essential need for the present scenario.
Introduction: Commercial Speech
Commercial speech is speech that suggests a commercial transaction or is an expression entirely related to the economic interest of the speaker and his listener or audience. Simply put, it can be understood as an expression of commercial interest. Article 19(1)(a) of the Indian constitution protects Indian citizens' right to free speech and expression.
The fundamental rights guaranteed by the Indian Constitution sometimes take on a discriminatory character. Different types of speech are classified under Article 19(1)(a), which guarantees freedom of expression, and are consequently given varying degrees of protection.
Commercial Speech and Indian Scenario
The evolution of the protection of commercial speech in India under Article 19(1)(a) of the Indian Constitution has a fascinating trajectory. According to popular beliefs, commercial speech is treated stepmotherly under Article 19. If we dig back to the roots of the law, we can see that commercial speech was not guaranteed protected under Article 19(1)(a). According to the ruling in Hamdard Dawakhana v. Union of India, advertising as a type of commercial communication is ineligible for protection under Article 19(1)(a) since they include trade and commerce, undermining the objective of spreading social ideas and beliefs. These advertisements were similar to people's business goals and were therefore not protected by Article 19(1)(a).
Although the Supreme Court ruled in the case of Romesh Thappar v. State of Madras, that Article 19(1)(a) covers the freedom of the press, it was in Indian Express Newspaper v. Union of India, that the Supreme Court established that commercial speech is protected under the ambit of free speech and expression under Article 19. The Supreme Court stated,
"We are of the view that all commercial advertisements cannot be denied the protection of Article 19(1)(a) of the Constitution merely because businessmen issue them and its true character is detected by the object for the promotion of which it is employed."
In the case of Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., the Supreme Court elucidated its position.
The Supreme Court ultimately decided that the general public may value an advertisement providing information on a life-saving drug much more than the advertiser, who may have commercial interests. Article 19(1)(a) not only guarantees freedom of speech and expression, but it also protects the rights of individuals to listen, read and receive the said speech." Further, the Supreme Court also held that misleading and deceptive advertising would not fall within the protection of Article 19. Furthermore, the Supreme Court held that Article 19's protections would not cover deceptive and misleading advertising. Article 19 as it is subject to reasonable restriction. So, the ruling of the Supreme Court in the Tata Press case was like listing reasonable restrictions to commercial speech for being considered under the ambit of Article 19.
The ruling in the Tata Press Ltd case did not exclude commercial speech from the ambit of Article 19 but recognized it as a fundamental right with reasonable restrictions under Article 19(2). The limitations under article 19(2) lay down that the freedoms envisaged in Article 19 can be restricted provided that they are122 based on the authority of law and reason.
Even though Supreme Court deviated from the opinion that it gave in the Hamdard Dawakhana v. Union of India in the Tata Press Ltd v. Mahanagar Telephone Nigam Ltd., the Tata Press case does not overrule the Hamdard Dawakhana case as a constitutional bench gave the Hamdard decision and the Tata Press decision was given by a division bench. Even when this complication exists, the Indian courts have been deciding cases even though we do not have much clarity on this matter.
In the 2008 case of Mr. Mahesh Bhatt and Kasturi and Sons v. Union of India, the Supreme Court held that commercial speech could be restricted more quickly compared to political or social speech if the government could show substantial justification for doing so. The court held that preventing the advertisement of tobacco products was justified because the state had an interest in safekeeping public health after a harmonious reading of Article 19(1)(a) and Article 21. The Indian judiciary is in its nascent stage of creating a normative framework to support its use of robust judicial oversight of laws. The courts have not yet used it as a benchmark to control limits on freedom of commercial speech.
The conflict on whether commercial speech should be protected under Article 19 of the Indian Constitution is an ever-evolving matter in Indian courts. The concept of commercial speech has developed from a simple intuition of economic principles to a part of speech that may contain concepts of significant attention. One of the main arguments for diminishing the protection given to commercial speech under Article 19 is to prevent the dilution of protection afforded to non-commercial speech. This has created a chaotic scenario that goes against the principles of clarity and predictability that make up the foundation of the modern legal system. Only if there is predictability and clarity to the law can the legal framework function efficiently and help the country's citizens lead an easier life.
The only way to bring clarity and predictability to this situation is by dissolving the unwritten hierarchy between commercial speech and noncommercial speech by clearly laying down the restrictions with complete clarity so that nobody can take undue advantage of the law. The horizon of commercial speech is expanding day by day. From advertisements to film distribution and whatnot is being included under its spectrum. Commercial speech is becoming more and more defined, and the arguments against classifying it as a variety of core speech are becoming less and less compelling. Therefore, giving protection to commercial speech under Article 19 has become a necessity. Let us hope for an affirmative change soon, considering its gaining importance.
 Shailja Rawal, Stepmotherly Treatment Given to Commercial Speech under Article 19(1): A Critical Analysis of the Existing Hierarchy, Available Here
 Tata Press Ltd v. Mahanagar Telephone Ltd., AIR 1995 SC 2438
 The Constitution of India, Available Here
 HamdardDawakhana v. Union of India, 1960 SCR (2) 671
 Supra 1.
 Supra 4.
 Romesh Thappar v. State of Madras, 1950 SCR 594
 Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641
 Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., 1995 AIR 2438
 Supra 2.
 Akhil Deo & Joshita Pai, Commercial Speech: A variant or a step-child of free speech, Available Here
 Supra 9.
 Mr. Mahesh Bhatt & Kasturi and Sons v. Union of India, 147 (2008) DLT 561
 Supra 12