Hierarchies of Expression: Commercial Speech, Hamdard Dawakhana and Tata Press

In our first post, on Sakal Papers, we had discussed the democratic justification for free speech, and how it affected the court’s decision upon monopolistic practices in the newspaper industry. We had observed that a corollary of the democratic justification was that only speech with certain content – that contributed in some way to democracy – would be protected under Art 19(1)(a). While this was an incidental issue in Sakal Papers, the Court faced it squarely in Hamdard Dawakhana v. Union of India (1959) and Tata Press v. MTNL (1995); and the different decisions in these two cases mark an interesting shift in the Court’s jurisprudence over 36 years.

In Hamdard Dawakhana, the constitutionality of Ss. 3 and 8 of the Drugs and Magical Remedies Act was impugned. The stated objective of the Act was to prohibit “misleading” advertisements that claimed certain drugs had magical or other remedies, arising out of a concern that a number of people were using these fake drugs for the purposes of self-medication, and worsening their own health. It was argued that this prohibition fell foul of Article 19(1)(a).

The Court found on fact that the evils of self-medication were indeed prevalent in India, and that there was a causal link between “unethical” advertisements, and physical harm caused due to self-medication. (Paragraph 12) It then went on to hold that:

“An advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed…. when it takes the form of a 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 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… and… [has] 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.” (Paragraph 17)

This statement requires close scrutiny. At the very beginning, the Court concedes that an advertisement is a “form of speech”, but goes on to hold – nonetheless – that the advertisements in question are not protected by Article 19(1)(a) because they have “no relationship with the essential concept of the freedom of speech.” This is an unambiguous affirmation of the instrumental theory of free speech: speech is valuable not in itself and for itself, but insofar as it is found to bear a relationship with the propagation of ideas. Admittedly, the Court’s choice of phrase here is much broader than the democratic justification advanced in Sakal (surely, pornography conveys a social idea!) – but it remains, nonetheless, an instrumental justification.

The phrase “has no relationship with”, when read in conjunction with “essential concept of”, raises a further interesting possibility; “relationship” is not a zero-sum concept, and “essential concept” suggests the idea of gradation. Is the Court implicitly saying, therefore, that different forms of speech bear differing degrees of relationship with the essential concept (propagation of ideas), and the level of protection afforded to a particular instance of speech depends upon its proximity to the essential concept? Is the Court proposing hierarchies of speech, with different value attaching to each level? This position has been occasionally endorsed in the United States (e.g., the banning or regulation of “adult content” requiring a lower burden of justification from the State – see US v. Playboy). The differences between Article 19(1)(a) and the First Amendment (in particular, the existence of Art 19(2)) make any direct analogies risky at the best of times, but the question is open.

We now come to the MTNL case.  Rule 458 of the Telegraph Rules, 1951, prohibited the publication of a list of telephone subscribers without the permission of the Telegraph Authority. Tata Press was engaged in publishing “Yellow Pages” – that is, a compilation of advertisements given by businessmen, traders and other professionals. It was alleged that this violated Rule 458, since MTNL’s (the government body) telephone directory included something almost identical. The High Court found that, in substance and in purpose, the Yellow Pages amounted to a telephone directory, and therefore their publication contravened Rule 458.

In appeal before the Supreme Court, one of the key contentions of the appellant was that commercial speech was protected speech under Article 19(1)(a), notwithstanding the seemingly contrary decision in Hamdard Dawakhana. It was argued that the American case of Valentine vs Chrestensen, which the Hamdard Dawakhana Court had relied upon, had itself been overruled by  Va. Pharmacy Board vs Va. Consumer Council – a case that explicitly brought commercial speech within the ambit of the First Amendment – with a lower threshold of protection than was accorded to speech dedicated to the propagation of ideas (paragraphs 15 – 16). Agreeing with this contention, the Court noted that advertisements were protected under Article 19(1)(a), while “deceptive, unfair, misleading and untruthful” commercial speech would be hit by Article 19(2) (presumably by the “morality” prohibition).

It remained to distinguish Hamdard Dawakhana. Relying upon Indian Express Newspapers v. Union of India, the Court held that the Hamdard Dawakhana decision was limited only to the specific type of advertisement at issue in that case, i.e., misleading advertisements for drugs – and was not authority for a general proposition excluding commercial speech from constitutional protection.

The Court then found three justifications for protecting commercial speech. First, advertisements were essential towards keeping prices down in a market economy; secondly, advertisements provided a crucial source of revenue to newspapers, and a free media was the life-blood of democracy; and thirdly, by maintaining the free flow of information, advertisements were necessary for consumers to make an informed choice (paragraphs 19, 22 and 23). Reading Rule 458 of the Telegraph Rules in light of these findings, it held in favour of Tata Press.

Two points may be made here. First, the Court is careful not to depart from the democratic justification of Sakal Papers. Each of the three reasons are brought back – if in a slightly circuitous way – to democracy (although perhaps controversially, the Court seems to have adopted, without argument, a conception of democracy that makes it synonymous with a market economy). As in Hamdard Dawakhana, however, the scope has been considerably broadened because, admittedly, commercial speech has nothing to do with social, political or cultural ideas. This has been done by allowing an indirect causal connection between the impugned speech and the overall maintenance and sustenance of democracy. It is an open question, then, whether the democratic justification – when read so broadly – provides any kind of limiting condition at all. To return to the vexing question of obscenity – it is entirely possible to argue – as Dworkin would – that democracy requires government to accord equal concern and respect to all citizens, and that this condition can be fulfilled only by allowing everyone an equal opportunity to contribute to the society’s moral environment. In other words, contrary to Hamdard Dawakhana, 19(1)(a) excludes no form of speech.

This provides a segue into the second point. There is an undeniable conflict between Hamdard Dawakhana and Tata Press. The former made it clear that misleading advertisements were not protected by Article 19(1)(a), whereas the latter makes it equally clear that they are, and are further hit by Article 19(2). Hamdard Dawakhana was a constitutional bench decision. Tata Press was decided by a bench of two judges. There is no doubt the the finding in question was part of the ratio in Hamdard Dawakhana (while the observation that commercial speech does not fall within Art 19(1)(a) was not). The position of law, therefore, would seem to be that there are forms of speech that are excluded from 19(1)(a) protection, such as those proscribed in Hamdard Dawakhana.

In either event, these cases demonstrate a good example of soft legal paternalism at work (see the last post). For the purposes of argument, let us ignore the interests of the advertisers, and focus on consumers. Presumably, consumers read advertisements (and take medicines) because they wish to be accurately informed (and get well). Misleading advertisements (and fake medicines) are therefore contrary to their interest, and they would hypothetically endorse governmental measures that corrected errors of this sort. Unlike Ranjit Udeshi, therefore, where interference was with questions of value and the ground rules of judgment, here governmental interference relates to questions of fact and evidence, and is thus easier to justify.