COMMERCIAL ADVERTISEMENTS UNDER ARTICLE 19(1)(a) AND THE CABLE TELEVISION NETWORKS (REGULATION) ACT
Introduction
Freedom of speech is the bulwark of democratic government. This freedom is essential for the proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties giving succour and protection to all other liberties. It has been truly said that it is the mother of all other liberties[1].
In a democracy, freedom of speech and expression opens up channels of free discussion of issues. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters.
The freedom of speech and expression includes the liberty to propagate not only one’s own views but also the right to propagate or publish the views of other people as well.
Freedom of expression has four purposes:
(1) it helps an individual, to attain self fulfillment;
(2) it assists in the discovery of truth;
(3) it strengthens the capacity of an individual in participating in decision making;
(4) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
The freedom of speech and expression is a very fundamental freedom and is essential for the proper functioning of a democracy. Free speech and expression gives rise to open debates which help in the proper growth and functioning of a democratic nation.
Freedom of speech under Article 19(1)(a)
Article 19(1)(a) guarantees to all citizens the freedom of speech and expression. The freedom of speech and expression means the freedom to convey effectively one’s thoughts and feelings.
The freedom of speech and expression is a fundamental freedom, one without which a liberal society cannot exist.
Under the freedom of speech and expression, the freedom of media is also implied. With media, any communication meant for the public at large is meant and it includes press, films, radio, television and all other forms of mass communication.
Along with the freedom of speech, Article 19(1)(a) also guarantees the freedom of silence.[2]
In the case of Association for Democratic Rights v Union of India[3], the right to information has also been included in the freedom of speech.
The speech has the protection of Article 19(1)(a) and it is guaranteed to all the citizens. However, this right is not guaranteed to the non citizens.
In Secretary, Ministry of I&B v Cricket Association of Bengal[4], the Supreme Court held that the right of freedom of speech and expression includes the right to communicate effectively and to a large population not only in this country but also abroad.
Thus, under Article 19(1)(a) the various rights are covered and guaranteed to the citizens of India. The freedom of speech and expression is a basic right expressly provided under the provisions of Article 19(1)(a) while the other freedoms can be inferred from it.
Commercial speech or advertisements
Article 19(1)(a) guarantees the right of freedom of speech and expression. This extent of this right has been determined by the judicial interpretation. One of the issues before the courts is whether a commercial advertisement qualify for protection under this right.
In the case of Hamdard Dawakhana v Union of India[5], the Supreme Court for the first time considered the question whether the advertisements are protected under the provisions of Article 19(1)(a) or not. In this case, the constitutionality of an Act( The Drugs and Magic Remedies (Objectionable Advertisements) Act) passed by the Parliament with a view to control advertisements of drugs in certain cases was under question. The Act was challenged on the ground that the restrictions on advertisements was a direct abridgement of the freedom of expression. The court ruled that the predominant object of the Act was not merely to curb advertisements offending against decency or morality, but also to prevent self medication by prohibiting instruments which might be used to advocate or spread the evil. The court stated that an advertisement, no doubt, is a form of speech, but its true character is to be determined by the object which it seeks to promote. It may amount to an expression of ideas and propagation of human thoughts and, thus, would fall within the scope of Article 19(1)(a). But a commercial advertisement having an element of trade and commerce, and it no longer falls within the concept of freedom of speech for its object is not to propagate any ideas- social, political or economic or to further literature or human thought.
An advertisement promoting drugs and commodities, the sale of which is not in public interest, could not be regarded as propagating any idea and, as such, could not claim the protection of the freedom of speech.
An advertisement meant to further business falls within the concept of trade and commerce. A commercial advertisement advertising an individual’s business cannot be regarded as a part of freedom of speech.
But the Supreme Court has modified its view expressed in the Hamdard Dawakhana case somewhat in later cases.
In Sakal Papers Ltd v Union of India[6] and the Bennett Coleman and Co. v Union of India[7] , the Supreme Court has dilated upon the great significance of advertisement revenue for the economy of newspapers. In the Benett Coleman case, the Supreme Court held that any policy which curtails or limits the number of pages to be printed by a newspaper and hence leads
to either curtailment in the number of advertisements published or the reduction in the space allotted expressing news and views relating to it shall be violative of the freedom enshrined under the Constitution.
In the Indian express Newspapers v Union of India[8], differing from Hamdard Dawakhana ruling, the court has observed : “We are of the view that all commercial advertisements cannot be denied the protection of
Article 19(1)(a) of the Constitution merely because they are issued by businessmen.” Advertising pays large portion of the costs of supplying the public with the newspapers. “For a democratic press, the advertising “subsidy” is crucial.” With the curtailment in advertisements, the price of a newspaper will be forced up and this will adversely affect its circulation and this will be a direct interference with the right of freedom of speech and expression guaranteed under Article 19(1)(a).
Reading Hamdard Dawakhana and Indian express together, the Supreme Court has concluded in Tata Press Ltd v Mahanagar Telephone Nigam Ltd.[9] that “commercial speech” is a part of freedom of speech guaranteed under Article 19(1)(a). In this case, the Mahanagar telephone Nigam, a government company, had entrusted the publication of its telephone directory from 1987 to outside contractors. The Nigam permitted such contractors to raise revenue for themselves , by procuring advertisements and publishing the same as “yellow pages” appended to the telephone directory. Thus, the telephone directory published and distributed by the Nigam consisted of the “white pages” which contained the list of telephone numbers and also “yellow pages” consisting of the advertisements procured by the contractors to meet the expenses incurred in printing, publishing and distributing the directory. The Tata Press Limited were engaged in the publishing the “Tata Press Yellow Pages”. The Nigam and the Union of India filed a civil suit claiming that they alone had a right to publish the list of telephone numbers. The City Civil Court dismissed the suit but a single Judge Bench of High Court allowed the appeal. On appeal to the Supreme Court, the Court held that the Union Government and the Nigam had no right to restrain the appellants, Tata Press from publishing the yellow pages comprising of paid advertisements from businessmen, traders and professionals. It was further held that all commercial speech cannot be denied the protection provided under Article 19(1)(a). The public at large
has a right to receive commercial speech. Article 19(1)(a) protects the rights of an individual “to listen, read and receive” the “commercial speech”. The protection of Article 19(1)(a) is available both to the speaker as well as to the recipient of the speech.
Advertising is a commercial speech which has two facets:
(1) advertising which is no more than a commercial transaction, nonetheless, disseminates information regarding the product advertised. Public at large stands benefited by the information made available through advertisement. In a democratic economy, free flow of commercial information is indispensable. Therefore, any curtailment of advertising would affect the fundamental right under Article 19(1)(a) on the aspects of propagation, publication and circulation.
(2) The public at large has a right to receive commercial information. Article 19(1)(a) protects the rights of an individual to listen, read and receive the said speech. The protection of Article 19(1)(a) is available to the speaker as well as the recipient of the speech.
In Tata Press case, the Supreme Court accepted as valid the printing of yellow pages by the Tata Press. Printing of a directory of telephone subscribers is to be done exclusively by the Telephone Department as a part of its service to the telephone subscribers. But yellow pages only contain commercial advertisements and Article 19(1)(a) guarantee freedom to publish the same.
Reasonable restrictions
The freedom guaranteed under Article 19(1)(a) is not absolute but subject to certain restrictions. These restrictions are provided under Article 19(2) of the Constitution. Since the commercial advertisements have been given protection under article 19(1)(a), they are subject to the restrictions under Article 19(2).
Under Article 19 clause (2), the State can make a law imposing reasonable restrictions on the freedom of speech and expression in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Since the commercial advertisements have been given protection under Article 19(1)(a), the same are subject to the restrictions under Article 19(2).
(1) Security of State- The security of state may be endangered by crimes of violence intended to overthrow the government, waging war and rebellion against the government, external aggression or war, etc. Every public disorder cannot amount to be regarded as threatening the security of the State. The words “in the interest of security of the state” imply that the actual result of the act is immaterial. Thus, acts which may indirectly bring about an overthrow of the state would come within the expression.
(2) Friendly relations with foreign States- This ground was added by the Constitution (First Amendment) Act of 1951. The object behind this provision is to prohibit unrestrained malicious propaganda against a foreign state which may affect the maintenance of good relations with that state.
(3) Public order- This ground was added by the Constitution (First Amendment) Act of 1951. The term public order is synonymous with public peace, safety and tranquility. The test for determining whether an act affects public order or not is to see whether it leads to the disturbances of the current of life of the community so as to amount to a disturbance of public order or it merely affects an individual.
(4) Decency or morality- The freedom of speech and expression can be curtailed on the ground of being against decency or morality. Sections 292-294 of the Indian Penal Code, 1860, provide instances of restrictions on the freedom of speech and expression in the interest of decency and morality. It prohibits the sale or distribution or exhibition of obscene words, etc.
(5) Contempt of Court- Restrictions on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to the contempt of court. Under the Contempt of Courts Act, 1971, contempt of court maybe either civil contempt or criminal contempt. Civil contempt means any willful disobedience to any judgement, decree, order, process or writ. Criminal contempt means an act which scandalizes or tends to scandalize or lowers or tends to lower the authority of any court, prejudices, interferes or tends to interfere with the due course of any judicial proceeding or interferes or obstructs the administration of justice in any other manner.
The defamatory criticism of a Judge functioning as a judge even in purely administrative or non adjudicatory matter amounts to criminal contempt.
(6) Defamation- Any statement which adversely affects a man’s reputation amounts to defamation. The freedom of speech does not empower a person to hurt the rights of another person. Defamation effects a person’s reputation in society and is punishable offence under the IPC as well as civil wrong under the law of torts.
(7) Incitement to an offence- This ground was added by the Constitution (First Amendment) Act of 1951. The freedom of speech and expression does not give license to incite people to commit an offence. In State of Bihar v Shailabala Devi[10], the Supreme Court held that incitement to murder or other violent crimes would endanger the security of the state; hence a restriction against such incitement would be a valid law under Article 19 clause (2).
(8) Integrity and Sovereignty of India- This was added by the Constitution (Sixteenth Amendment) Act of 1963. Under this clause, freedom of speech and expression can be restricted so as not to permit any one to challenge the integrity or sovereignty of India or to preach cession of any part of India from the Union.
Advertisements under Cable Television Networks (Regulation) Act, 1995
The object of the Cable Television Networks (Regulation) Act, 1995 is to regulate the operation of cable television networks in the country so as to bring about uniformity in their operation. It will, thus, enable the optimal exploitation of this technology which has the potential of making available to the subscribers a vast pool of information and entertainment.
It regulates the quality and standards of all programmes, including advertisements that are transmitted through cable television networks.
Section 6 of the Act provides that- “No person shall transmit or retransmit through a cable service any advertisement unless such advertisement is in conformity with the prescribed advertisement code.”
Rule 7 of The Cable Television Networks Rules, 1994 lays down the advertisement code. An advertisement which does not satisfy the conditions laid down under the advertising Code shall not be transmitted on any cable television network. It provides that-
“(1) Advertising carried in the cable service shall be so designed as to conform to the laws of the country and should not offend the morality, decency and religious susceptibilities of the subscribers.
(2) No advertisement shall be permitted which :-
(i) derides any race, caste, colour, creed and nationality;
(ii) is against any provision of the Constitution of India
(iii) tends to incite the people to crime, cause disorder or violence or breach of law or glorifies violence or obscenity in any way;
(iv) presents criminality as desirable;
(v) exploits the national emblem, or any part of the Constitution or the person or personality of a national leader or a State dignitary;
(vi) in its depiction of women violates the Constitutional guarantee to all citizens. In particular, no advertisement shall be permitted which projects a derogatory image of women. Women must not be portrayed in a manner that emphasizes passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society. The cable operator shall ensure that the portrayal of the female form, in the programmes carried in his cable service is tasteful and aesthetic, and is within the well established norms of good taste and decency;
(vii) exploits social evils like dowry, child marriage.
(viii) Promotes directly or indirectly production, sale or consumption of-
(A) cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants:
Provided that a product that uses a brand name or logo, which is also used for cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants, may be advertised on cable service subject to the following conditions that-
(i) the story board or the visual of the advertisement must depict only the product being advertised and not the prohibited products in any form or manner;
(ii) the advertisement must not make any direct or indirect reference to the prohibited products;
(iii) the advertisement must not contain any nuances or phrases promoting prohibited products;
(iv) the advertisement must not use particular colours and layout or presentations associated with the prohibited products;
(v) the advertisement must not use situations typical for promotion of prohibited products when advertising the other products:
Provided further that all such advertisements shall be previewed and certified by the Central Board of Film Certification suitable for unrestricted public exhibition prior to telecast or transmission or retransmission.
(B) infant milk substitutes, feeding bottle or infant foods.
(3) No advertisement shall be permitted the objects whereof are wholly or mainly of a religious or political nature; advertisements must not be directed towards any religious or political end.
(3A) No advertisement shall contain references which hurt religious sentiments
(4) The goods or services advertised shall not suffer from any defect or deficiency as mentioned in Consumer Protection Act, 1986.
(5) No advertisement shall contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or super natural property or quality which is difficult of being proved.
(6) The picture and the audible matter of the advertisement shall not be excessively ‘loud’
(7) No advertisement which endangers the safety of children or creates in them any interest in unhealthy practices or shows them begging or in an undignified or indecent manner shall not be carried in the cable service.
(8) Indecent, vulgar, suggestive, repulsive or offensive themes or treatment shall be avoided in all advertisements.
(9) No advertisement which violates the Code for self regulation in the advertising, as adopted by the Advertising Standard Council of India (ASCI), Mumbai for public exhibition in India, from time to time, shall be carried in the cable service.
(10) All advertisements should be clearly distinguished from the programmes and should not in any manner interfere with the programme viz., use of lower part of screen to carry captions, static or moving alongside the programme.
(11) No programme shall carry advertisements exceeding twelve minutes per hour, which may include up to ten minutes per hour of commercial advertisements, and up to two minutes per hour of a channel’s self promotional programmes.”
Thus, the advertising code lays down various requirements which a commercial advertisement should satisfy. Any cable television network is not permitted to exhibit any advertisement which is not in conformity with these conditions.
Conclusion
The commercial speech or advertisements were not covered under the freedom of speech and expression, however, the courts have now recognized the commercial advertisements as also a part of speech covered under speech and expression under Article 19(1)(a) and are thus, given protection.
The commercial advertisements play a dual role- they are part of speech as well as they play a commercial part. They cannot be denied the protection of Article 19(1)(a) only on the ground that they were issued by a businessman or that they have a commercial aspect included with them.
The commercial advertisements can be curtailed only on the restrictions imposed under Article 19(2) and none other.
Thus, the commercial advertisements have the protection of Article 19(1)(a) and hence cannot be denied circulation.
It's very informative..thank u
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