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TMI Blog1995 (8) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay by its judgment dated August 7, 1993 dismissed the suit. First appeal filed by the Nigam and the Union of India was heard by a learned single judge of the Bombay High Court and the learned judge by the judgment dated April 27, 1994 allowed the appeal, set aside the judgment of the trial court and decreed the suit. Letters Patent Appeal filed by the Tatas was dismissed by a Division Bench of the Bombay High Court by the impugned judgment dated September 8, 1994. This appeal, by way of special leave, is against the judgment of the Division Bench of the High Court upholding the learned single judge. The Nigam is a Government company substantially controlled by the Government of India. The Government holds 80% of the total shares of the company. The Nigam is a licensee under the Act and as such is required to establish, maintain and control the telecommunication services within the territorial jurisdiction of the Union Territory of Delhi and the areas covered by the Municipal Corporations of Bombay, New Bombay and the Thane. Till 1987 the Nigam/Union of India used to publish and distribute, on its own, the telephone directory consisting of white pages only. However, of late, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Telegraph Authority from time to time. 453. Entries in telephone directories. - For each direct telephone line rented (i.e. for main connections, direct extensions and PBX junction lines) ordinarily only one entry not exceeding one line will be allowed free of charge in the telephone directory to every subscriber. Such entry shall contain the telephone number, the initials, the surname and the address of the subscriber or user. No word which can intelligibly be abbreviated shall be allowed to be printed in full. Additional lines may be allowed by the Telegraph Authority at its discretion. 457. General. - Any telephone directory provided by the Department shall remain its exclusive property and shall be delivered to it on demand. The department reserves the right to amend or delete any entries in the telephone directory at any time and undertakes no responsibility for any omission; and it shall not entertain any claim or compensation on account of any entry in or omission from the telephone directory or of any error therein. 458. Publishing of telephone directory. Except with the permission of the Telegraph Authority no person shall publish any list of telephone subscri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g words:- "There should be no doubt that a publication in order to amount to a contravention of the Rules, as quoted above, must in substance be a "list of telephone subscribers", for it is the substance that must count and must outweigh and take precedence over mere appearance. Before restraining the defendant Tata Press Ltd. from publishing or circulating or in any way dealing with the "TATA Press Yellow Pages", we have to be satisfied that in substance and in effect the same is a "list of telephone subscribers" or a "telephone directory". The case at hand involves questions, not so much of law but rather of semantics and common sense." The Bench while dealing with the question observed as under:- "a list of telephone subscribers" would obviously mean a list of persons to whom telephone services have been provided by means of an installation under the Telegraph Rules or under an agreement. Suppose we, in this High Court, print or publish a Book containing a list of our judges and officers containing their names. designations, departments they are attached to, their office as well as residential addresses and also thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Telephone Directory or a List of Telephone Subscribers also....... reading the provisions of Rules 452, 458 & 459 together, we will have to hold that even if a telephone directory or List of Telephone Subscribers contain advertisements, may be in large numbers, publication thereof would nevertheless come within the prohibition of Rule 458 as in such a case the publication, even though not merely a Telephone Directory or a List of Telephone Subscribers, is also nevertheless such a telephone directory or List of Telephone Subscribers." Learned counsel for the appellant has drawn our pointed-attention to the above quoted observations of the Division Bench of the High Court and has vehemently contended that the examination of Tata-pages, even in the light of the Test laid-down by the High Court, would show that the said compilation is not a Telephone Directory. A Bar Association or a Medical Association can publish a List of their respective members. Similarly, according to the learned counsel, the Associations of professionals, traders or businessmen can publish Lists of their respective members. The Tata-pages, he contended, which is a compilation of advertisements, given by b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... freedom of speech for the object is not propagation of ideas social, political or economic or furtherance of literature or human thought; but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines. In such a case, advertisement is a part of business even though as described by Mr. Munshi its creative part, and it was being used for the purpose of furthering the business of the petitioners and had no relationship with what may be called the essential concept of the freedom of speech. It cannot be said that 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. In Lewis J. Valentine v. F.J. Chrestensen it was held that the constitutional right of free speech is not infringed by prohibiting the distribution in city streets of handbills bearing on one side a protest against action taken by public officials and on the other advertising matter. The object of affixing of the protest to the advertising circular was the evasion of the prohibition of a city ordinance forbidding the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... results in the society being deprived of such right then no doubt it would fall within the guaranteed freedom under Art. 19(1) (a). But if all it does is that it deprives a trader from commending his wares it would not fall within that term. In John W. Rast v. Van Deman & Lewis Company, Mr. Justice Mckenna, dealing with advertisements said:- "Advertising is merely identification and description, apprising of quality and place. It has no other object than to draw attention to the article to be sold and the acquisition of the article to be sold constitutes the only inducement to its purchase." As we have said above advertisement takes the same attributes as the object it seeks to promote or bring to the notice of the public to be used by it. Examples can be multiplied which would show that advertisement dealing with trade and business has relation with the item "business or trade" and not with "freedom of speech". Thus advertisements sought to be banned do not fall under Art. 19(1) (a). This Court in Hamdard Dawakhana's case primarily relied on the judgment of the United States Supreme Court in Valentine v Chrestensen for the proposition that &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under:- "There can be no question that in past decisions the Court has given some indication that commercial speech is unprotected. In Valentine v Chrestensen, supra, the Court upheld a New York statute that prohibited the distribution of any "handbill, circular .... or other advertising matter whatsoever in or upon any street." The Court concluded that, although the First Amendment would forbid the banning of all communication by handbill in the public thoroughfares, it imposed "no such restraint on government as respects purely commercial advertising". 316 US, at 54, 86 L ED 1262, 62 S Ct 920. Further support for a "commercial speech" exception to the First Amendment may perhaps be found in Breard v Alexandria, 341 US 622, 95 L Ed 1233, 71 S Ct 920, 46 Ohio Ops 74, 62 Ohio L Abs 210, 35 ALR 2d 335 (1951), where the Court upheld a conviction for violation of an ordinance prohibiting door-to-door solicitation of magazine subscriptions. The Court reasoned: "The selling...brings into the transaction a commercial feature", and it distingushed Martin v Struthers, supra, where it had reversed a conviction for door-to-door distribution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government." Roth v United States, 354 US 476, 484, 1 L Ed 2d 1498, 77 S Ct 1304, 14 Ohio Ops 2d 331 (1957), that it lacks all protection. Our answer is that it is not. Generalizing, society also may have a strong interest in the free flow of commercial information. Even an individual advertisement, though entirely "commercial," may be of general public interest. The facts of decided cases furnish illustrations: advertisements stating that referral services for legal abortions are available, Bigelow v Virginia, supra; that a manufacturer of artificial furs promotes his product as an alternative to the extinction by his competitors of fur-bearing mammals, see Fur Information & Fashion Council, Inc. v. E.F. Timme & Son, 364 F supp 16 (SDNY 1973); and that a domestic producer advertises his product as an alternative to imports that tend to deprive American residents of their jobs. Moreover, there is another consideration that suggests that no line between publicly "interesting" or "important" commercial advertising and the opposite kind could ever b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eys violated a free speech clause of First Amendment. The Court rejected arguments that such advertising would have an adverse effect on professionalism, would be inherently misleading, would have an adverse effect on the administration of justice, would produce undesirable economic effects, and would have an adverse effect on the quality of legal services. The Court, however, further held that such advertising, if false, deceptive or misleading could continue to be restrained, and that, as with other varieties of speech, such advertising could be made subject to reasonable restrictions on the time, place and manner of such advertising. After the decision in Virginia Board case, it is almost settled law in the United States that "commercial speech" is entitled to the First Amendment protection. The Supreme Court has, however, made it clear that Government was completely free to recall "commercial speech" which is false, misleading, unfair, deceptive and which proposes illegal transactions. A political or social speech and other public- affairs - oriented discussions are entitled to full First Amendment protection whereas a "commercial speech" may be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot;We have carefully considered the decision in Hamdard Dawakhana's case (supra). The main plank of that decision was that the type of advertisement dealt with there did not carry with it the protection of Article 19(1) (a). On examining the history of the legislation, the surrounding circumstances and the scheme of the Act which had been challenged there namely the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 (21 of 1954) the Court held that the object of that Act was the prevention of self-medication and self-treatment by prohibiting instruments which may be used to advocate the same or which tended to spread the evil.... In the above said case the Court was principally dealing with the right to advertise prohibited drugs, to prevent self-medication and self-treatment. That was the main issue in the case. It is no doubt true that some of the observations referred to above go beyond the needs of the case and tend to affect the right to publish all commercial advertisements. Such broad observations appear to have been made in the light of the decision of the American Court in LEWIS J. Valentine vs. F.J. Chrestensen (supra). But it is worthy of notice that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1962 SC 305 considered the constitutional validity of the Newspaper (Price and Page) Act, 1956. The said Act empowered the Government to regulate the prices of newspaper in relation to their pages and sizes and to regulate allocation of space for advertisement matter. This Court held that the Act placed restraints on the freedom of press to circulate. This Court further held that the curtailment of the advertisements would bring down the circulation of the newspaper and as such would be hit by Article 19(1) (a) of the Constitution of India. In Sakal Papers's case it was argued before this Court that the publication of advertisements was a trading activity. The diminution of advertisement revenue could not be regarded as an infringement of the right under Article 19(1) (a). It was further argued before this Court that devoting large volume of space to advertisements could not be the lawful exercise of the right of freedom to speech and expression or the right of dissemination of news and views. It was also contended that instead of raising the price of the newspaper the object could be achieved by reducing the advertisements. This Court rejected the contentions and held as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of "commercial speech". In relation to the publication and circulation of newspapers, this Court in Indian Express newspaper's case, Sakal paper's case and Bennett Coleman's case has authoritatively held that any restraint or curtailment of advertisements would affect the fundamental right under Article 19(1) (a) on the aspects of propagation, publication and circulation. Examined from another angle, the public at large has a right to receive the "Commercial speech". Article (19) (1) (a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements. The protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech. The recipient of "commercial speech" may be having much deeper interest in the advertisement than the busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to regulate the form and contents of the telephone directory. In the development of this form of public utility service, the telegraph authority has found it practicable and profitable to diminish the cost and increase the profits of operation by making use of its directories as a means and form of advertising available to its subscribers. In the typical classified telephone directory, or the "yellow pages" section of the directory published by the Nigam, there are alphabetical light-faced type listing (for which there is usually no charge), alphabetical bold faced type listings, alphbetical in-column business card listings and display advertising. "Yellow pages" of the telephone directory are wholly paid advertising. It cannot be disputed that the paid advertising,apart from the light-faced free listing, is not in the nature of a service rendered by a utility. The "Yellow Pages" attached to the telephone directory issued by the Nigam cannot be a part of the Nigam's public telephone service. Rules 458 and 459 of the Rules have to be interpreted in the light of our findings that "commercial speech" by itself is a fundamental right under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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