9911796707
TMI Blog1995 (8) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... issed 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 Nigam started entrusting the publication of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies 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 subscribers. 459. Advertisements. The Telegraph Authority m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 their telephone numbers in the office as well as in their residence. Or, suppose, a Bar Association or a Medic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old 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 businessmen, traders and professionals, cannot be equated with a list of Telephone Subscribers. It is contended that the Tata-Pages was a Buyer& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 distribution in the city streets of commercial and business advertising matter. Mr. Justice Roberts, delivering the opinion of the court said: This court has unequivocally held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 purely commercial advertising is not protected by Article 19(1) (a) of the Constitution. Dr. Singhvi has placed reliance on series of judgments of the United States Supreme Court since 1942 when Chrestensen's case was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 of leaf-lets publicizing a religious meeting, as a case involving no element of the commercial. 341 US, at 642-643, 95 L Ed 1233, 71 S Ct 920, 46 Ohio Ops 74, 62 Ohio L Abs 210, 35 ALR2d 335................. Since the decision in Breard, however, the Court has never denied protection on the ground that the speech in issue was commercial spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be drawn. Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 restricted more easily whenever the government can show substantial justification for doing so. More recent judgments of the Supreme Court of Unites States in Central Hudson Gas Electric Corp. v. Public Service Commission 447 US 557, Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico 92 L Ed. 2nd 266 and Board of Trustees of the State University of New York vs. Todd Fox 106 L Ed. 388 clearly indicate that in commercial speech cases a four-part analysis has developed. At the outset, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the view expressed in this American case has not been fully approved by the American Supreme Court itself in its subsequent decisions. We shall refer only to two of them. In his concurring judgment in William B. Cammarano v. United States of America Justice Douglas said Valentine vs. Chrestensen..... held that business of advertisements and commercial matters did not enjoy the protection of the First Amendment, made applicable to the States by the Fourteenth. The ruling was casual, almost off hand. And it has not survived refle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under:- Again S.3(1) of the Act in so far as it permits the allocation of space to advertisements also directly affects freedom of circulation. If the area for advertisements is curtailed the price of the newspaper will be forced up. If that happens, the circulation will inevitably go down. This would be no remote, but a direct consequence of curtailment of advertisements ...If, on the other hand, the space for advertisement is reduced the earnings of a newspaper would go down and it would either have to run at a loss or close down or raise its price. The object of the Act in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 businessman who is behind the publication. An advertisement giving information regarding a life saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration. We, therefore, hold that commercial speech is a part of the freedom of speech and expression guaranteed under Article 19(1) (a) of the constitution. Adverting to the question whether Tata's compilation is a telephone directory as envisaged under the Rules, we may examine the scheme of the Rules. Rule 452 provides that a copy of the telephone directory shall be supplied free of charge for each telepho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 Article 19(1) (a) of the Constitution and the paid advertisements comprising Yellow Pages attached to the telephone directory is not a public utility service. Right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution can only be restricted under Article 19(2). The said right can not be denied by creating a monopoly in favour of the government or any other authority. Publication of advertisements which is a commercial speech and protected under Article 19(1)(a) of the Constitution cannot be denied to the appellants on the interpretation of rule 458 and 459 of the Rules. The plain language of the Rules indicate that the prohibition under rule 458 of the Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
