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TRANSCRIPT
BY
NANDINI HIRANI
INTERN
2ND YEAR
GLS LAW COLLEGE AHMEDABAD,
GUJARAT
Mob-7016039337
Mail id – [email protected]
18th APRIL 2020
A DEEPER UNDERSTANDING OF THE PURVIEW OF ARTICLE 19 OF THE INDIAN CONSTITUTION THROUGH THIS ‘TATA PRESS’ CASE.
BACKGROUND OF THE CASE
This appeal has arisen from a civil suit instituted before the Bombay High Court by the
Mahanagar Telephone Nigam Limited (the Nigam) and the Union of India for a declaration that
they alone have the right to print/publish the list of telephone subscribers and that the same
cannot be printed or published by any other person without express permission of the
Nigam/Union of India. A further declaration was sought that the Tata Press Limited (Tatas) have
no right whatsoever to print, publish and circulate the compilation called "Tata Press Yellow
Pages" (Tata- pages). Mahanagar Telephone Nigam Limited (MTNL), is a state-
owned telecommunications service provider and wholly owned subsidiary of BSNL. It is a
certifying authority, granting permission to other corporate houses who wish to publish any data
concerning its ‘telephone subscribers’, their contact numbers and their places of residence as per
Rule 458 of Telegraph Rules,1951. The whole issue in question comes into picture when Tata
Press, publishes information in the column named ‘Yellow page’. MTNL’s allegiance speaks of
Tata Press not being eligible to publish such information without the prior permission of MTNL.
This special appeal is heard by the Hon’ble Supreme Court in the case “Tata Press Limited v.
Mahanagar Telephone Nigam Ltd.
FREEDOM OF SPEECH AND EXPRESSION- NOT JUST
FUNDAMENTAL RIGHT BUT A BASIC HUMAN RIGHT
A basic human right is right of a human being by the virtue of him being human, without any
specifications, demarcations and justifications. Article 10 of the Universal Declaration of Human
Rights ,1945 notes that “Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.” The expression need
not necessarily be in the written form but it encompasses all those forms which are sufficient
enough to transmit any gesture of information to the one intended to be informed.
FACTS OF THE CASE
The present case dated 3rd August,1995 is a special leave petition filed in the Supreme Court of
India by the virtue of Article 136 of the constitution against the judgement of the Division bench
of the High court of Bombay for upholding the learned single Judge. The case was filed by
Mahanagar Telephone Nigam Limited with the prayer including permanent injunction of the
publication of ‘Tata-Press-Yellow-Pages’ as it is alleged that it publishes the name and contact
number of ‘telephone Subscribers’ without the prior permission of the Nigam which it ought to
ask for as per the Rule 458 of Telegraph Rules,1951. The appellant i.e. Tata Press contended that
it does not deal with ‘telephone subscribers’ specifically and is just an advertising platform for
traders, businessman and professionals which are further required to apply by a formal procedure
after which, the tata press publishes the advertisements. This is thus considered as a part and
parcel of fundamental right guaranteed under article 19(1)(a). To settle the issue of whether a
commercial advertisement is included under the purview of article 19, this special leave petition
was filed in the case “Tata Press v. Mahanagar Telephone Nigam Limited’.
OVERALL CONTENTIONS BY BOTH THE PARTIES
1, Whether or not the ‘Tata-Press-Yellow-Pages’ is a telephone directory within the meaning
given in Rule 458 of the Telegraph Rules,1951.
2, Whether a simple "commercial speech" comes within the concept of "freedom of speech and
expression" guaranteed under Article 19(1)(a) of the Constitution of India.
CONTENTIONS OF THE PETITIONER (TATA PRESS LTD)
1. The petitioners contend that ‘Tata Pages’ is not a telephone directory and does not come
under the purview of Rule,458.
2. It is a buyer’s guide containing advertisements of traders, professionals and businessmen
on their prior application and payment.
3. The primary purpose of reference to a Telephone Directory is to find out the telephone
number of a particular telephone-subscriber whereas the primary purpose of a Buyer's
guide such as the Tata - Pages is to enable a consumer/buyer to find out the parties
engaged in a particular business or trade for providing a particular service.
4. The advertisements published are commercial in nature and are therefore in the form of
"commercial speech" protected under Article 19(1)(a) read with Article 19(2) of the
Constitution.
5. As per the above contentions, Tata Press is not required to ask for any permission from
MTNL for its publication of ‘Yellow Pages’.
CONTENTIONS OF THE RESPONDENT (MTNL)
1. The respondents contend that ‘Tata Pages’ is a telephone directory and comes under the
purview of Rule 458.
2. Rule 458 covers all parts of the telephone directory including the yellow pages and the
publication of advertisements in the form of yellow pages, appended to the white pages,
was within the bar contained in Rule 458 of the Rules.
3. Though the procedure for publishing in the ‘Tata Pages’ are different from the ‘telephone
directory’, it howsoever includes the details of ‘telephone subscribers’ too and is under
the obligation to ask MTNL for advertising permissions as per Rule 459.
4. A purely commercial advertisement is meant for furtherance of trade or commerce and as
such is outside the scope of freedom of speech and expression as enshrined in Article
19(1)(a).
5. As per the above contentions, the Tata Press Ltd is required to take permission from
MTNL for publishing its advertisements.
“RIGHT TO COMMERCIAL ADVERTISMENNT” – AN
ESSENTIAL ELEMENT PROTECTED UNDER ARTICLE 19
Advertising which is no more than a commercial transaction, is nonetheless dissemination of
information regarding the product advertised. Public at large is benefitted by the information
made available through the advertisement. In a democratic economy, free flow of commercial
information is indispensable. There cannot be veracious and economical marketing by the public
without being aware by the information disseminated through advertisements. The economic
system in a democracy would be handicapped without there being liberation of "commercial
advertisement" and when examined from another angle, the public at large has a right to receive
the information in the form of an "advertisement". Article (19) (1) (a) not only guarantees
liberation of verbalization and expression, it withal forfends the rights of an individual to
heedfully discern, read and receive the verbally expressed advertisement. So far as the economic
desiderata of a citizen is concerned, their fulfilment has to be guided by the information
disseminated through the advertisements. An advertisement giving information regarding a life
preserving drug may be of much more consequentiality to general public than to the advertiser
who may be having pristinely a trade consideration. An advertisement is no doubt a form of
verbalization but its true character is reflected by the object for the promotion of which it is
employed. It surmises the attributes and elements of the activity under Article 19(1) which it
seeks to avail by bringing it to the notice of the public. 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
liberation of verbalization for the object is not propagation of conceptions ' convivial, political or
economic or furtherance of literature or human thought. In Reliance Petrochemicals Ltd v.
Indian Express1 , it has been observed by the bench deciding the case that “We must remember
that people at large have a right to know in order to be able to take part in a participatory
development in the industrial life and democracy. Right to know is a basic right which citizens of
a free country aspire in the broader horizon of the right to live in this age on our land under Art.
21 of the Constitution. There has never been a consensus regarding the true character of
‘commercial advertising specifically’ being a part of freedom of speech and expression under
article 19(1)(a). More recent judgments of the Supreme Court of United States in Central
1 Reliance Petrochemicals Ltd v. Indian Express (1989) AIR 190
Hudson Gas & Electric Corp. v. Public Service Commission2, Posadas de Puerto Rico
Associates v. Tourism Company of Puerto Rico3 and Board of Trustees of the State University
of New York vs. Todd Fox4 clearly indicate that in "commercial speech" cases a four-part
analysis has developed. At the outset, it must be determined whether the advertising is protected
by the First Amendment. For commercial speech to come within that provision it must concern
lawful activity and not be misleading. Next it is seen whether the asserted governmental interest
is substantial. If both inquiries yield positive answers then it must be determined whether the
regulation directly advances the governmental interest asserted and whether it is more extensive
than is necessary to serve that interest. Unlike the First Amendment under the United States
Constitution, our Constitution itself lays down in Article 19(2) the restrictions which can be
imposed on the fundamental right guaranteed under Article 19(1) (a) of the Constitution. The
"Commercial speech" which is deceptive, unfair, misleading and untruthful would be hit by
Article 19(2) of the Constitution and can be regulated/prohibited by the State. Thus, the Tata
Press Yellow pages in no possible manner can be covered under the restrictions as imposed in
Article 19(2).
FIRST AMENDMENT OF THE U.S. CONSTITUION AND ARTICLE 19
OF THE INDIAN CONSTITUION – A SWOT ANALYSIS
India and The United States of America are the two biggest democracies of the world who
guarantee the right to freedom of speech and expression to its citizens. The first Amendment of
the U.S. constitution regarding a clause pertaining to freedom of speech and commercial
advertisement is similar to Article 19 of the Indian Constitution which says that Congress should
make no law abridging the freedom of speech or of press. However, the U.S constitution
encompasses two notable features;
1. Freedom of press is specifically mentioned therein,
2. No restrictions are mentioned on the freedom of speech.
2 Central Hudson Gas & Electric Corp. v. Public Service Commission (1980) 447 US 5573 Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986) 92 L Ed. 2nd 2664 Board of Trustees of the State University of New York vs. Todd Fox (1990) 106 L Ed. 388
As far as India is concerned, Supreme Court of India has held that there is no specific provision
ensuring freedom of the press separately. The freedom of the press is regarded as a “species of
which freedom of expression is a genus”. Therefore, press cannot be subjected to any special
restrictions which could not be imposed on any private citizen, and cannot claim any privilege
(unless conferred specifically by law), as such, as distinct from those of any other citizen.
COMMERCIAL ADVERTISEMNT LAWFULLY PROTECTED? INDIAN
VIEW VIS-À-VIS AMERICAN VIEW
INDIAN VIEW
Freedom of speech and expression does not specifically address the phrase ‘commercial
expression’ but a logical interpretation of the words speech and expression does not justify that it
would include any form of information which is exclusively out of the purview of being
commercial. As the words in its true sense do not clarify and bar the inclusion of commercial
expression which is a form of expression intended to make the general public aware about the
choices they need to make while dealing with trade and commerce. In the case of Hamadard
Dawakhana v. Union of India5 the Hon’ble supreme court held that “The media of expression
include advertisement which is extra commercial demonstration”.
AMERICAN VIEW
IN Bolger v. Youngs Drug Products6, the supreme court of America held that Commercial
speech is speech done on behalf of a company or individual for the purpose of making a profit.
Unlike political speech, the Supreme Court does not afford commercial speech full protection
under the First Amendment. To effectively distinguish commercial speech from other types of
speech for purposes of litigation, the Court uses a list of four indicia:
1. The contents do "no more than propose a commercial transaction".
2. The contents may be characterized as advertisements.
3. The contents reference a specific product.
5 Hamadard Dawakhana v. Union of India, (1960) SCR (2) 6716Bolger v. Youngs Drug Products, (1983) 463 U.S. 60
4. The disseminator is economically motivated to distribute the speech.
This indicates that when all these parameters are jointly viewed, the decision regarding the
subject matter of a speech being a ‘commercial speech’ can be taken. If we compare these given
parameters to the case on hand, we see that Tata pages are more than just a proposal for
commercial transaction as they already advertise the commercial content. Secondly, the contents
are totally in the form of advertisements. Thirdly, the products which it refers is not necessarily
specific but it works as a telephone directory for businessmen who deal in certain specific
products. Fourthly, the advertisements are economically motivated as the businessmen, traders
and professionals pay the Tata Press a specific amount for publishing such advertisements. This
detailed analysis has thus concluded that a commercial expression is lawfully protected under
both the democracies.
RULE 452 AND 453 OF INDIAN TELEGRAPH RULES,1951
452. Supply of telephone directories. A copy of the telephone directory shall be supplied free of
charge for each telephone, extension or party line, rented by the subscriber from an exchange
system or private branch exchange or a private branch exchange or a private exchange. A copy
shall also be supplied free of charge for each extension (including extension) from an extension
working from a public call office. Additional copies supplied shall be charged for at such rate as
may be fixed 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.
The above definitions in a clear manner ventilate that a telephone directory is provided by the
authority free of charge, as part of a service to its subscribers only. It is noteworthy that ‘Yellow
pages’ have settled this principle by arguing that they charge some amount from the people for
whom they advertise which makes it a totally commercial exertion. And this difference
establishes that ‘Tata Press’ is in no manner obligated to ask for the permission from the
telegraph authority. The rule also states criteria of publishing details of their subscribers or users,
so it should be taken into consideration that "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. ‘Yellow pages’ are not dealing
with its subscribers on any platform. The format of its functioning is to the extent of advertising
the material for which it is paid. So, this clearly proves that there is no comparison of yellow
pages and a telephone directory as produced in the present case. Both have their specific and
exclusive functions to perform and in no manner do they overlap each other.
RULE 458 AND 459 OF INDIAN TELEGRAPH RULES,1951
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 may publish or allow the publication of
advertisements in the body of the telephone directory.
The rules that are brought forth in front of the Hon’ble court in the present case entails a very
basic phenomena for proving a valid cause of action which is misleading in true sense. The rules
if read between the lines specify that there are two exclusions which are not covered.
1. For any person who publishes the list of telephone subscribers will have to ask for permission
from the telegraph authority. Which means that those who do not deal in any manner whatsoever
specifically with the “Telephone Subscribers” need not ask for any permission from the said
authority. “Yellow Pages” is on the contrary not a telephone directory but is classified under
heading 49.01 of tariff which includes trade advertising material, commercial catalogues and the
like. In the case Tata Press Ltd. vs Commissioner Of Customs, Mumbai7 , “The Custom House
took the view that the "Yellow Pages" was not a book classifiable under heading 4901 but a list
of paid advertisements classifiable under heading 4911.010, and that therefore the benefit
would not be available. The contents of the "Yellow Pages" are not in dispute. It is a list
alphabetically arranged of various persons and companies who have paid for inclusion in the
7 Tata Press Ltd. vs Commissioner Of Customs, Mumbai (2001) (136) ELT 142
publication. It contains, in that order, the name, sometimes in bold letters, of the person; his
profession or the service that he provides, (for example "patent and Trademarks Attorneys" or
"conveyancing, commercial, bank"), his address and telephone number.” Thus, as per the above
contention, it is clearly not a telephone directory. 2. For any person to ask for the permission of
the Telegraph authority, he should function as to publishing any such material which is similar to
a ‘Telephone Directory’. As per the definition of oxford dictionary, a telephone directory means
‘a book that lists the names, addresses and phone numbers of people in a particular area’.
‘Yellow pages’ is neither a book nor does it maintain the records of people in general. It is a
commercial catalogue which advertises the content on the request of businessmen, traders and
the like. The decision of the Customs Tribunal in Blue Star Ltd vs CC8 is cited in support. Sub-
heading 1 of heading 99 of tariff is for "commercial catalogues in book form." In the decision the
Tribunal was considering the eligibility to classification under this heading of a catalogue of the
products manufactured by Amersham International plc of the United Kingdom. It had noted that
the publication was a commercial catalogue, since it listed information relating to products
manufactured by Amersham International plc of the United Kingdom. In the same way, the
information that the yellow pages publish is a commercial catalogue and not a telephone
directory.
FREEDOM OF EXPRESSION AND THE THEORY OF ‘DEMOCRACY’
What is the scope of the freedom if its justification lies in the requirements of democracy? This
is a question which is often brought into picture whenever the above two concepts are talked
about. As per Meiklejohn who stood against the First Amendment of the U.S. Constitution has
repeatedly argued that a pure democratic interpretation lays down a clearer picture for the limits
of freedom. For a democracy to stand on its true spirits it needs to entail the basic requirements
as to what it protects and what it does not, but does the idea of "democracy" provide a premise
from which we can deduce the sorts of expression that should be protected? The answer to this
would be it is the state itself that ascertains the tools which would further be used to restrict or
permit a given scenario by upholding its spirit of democracy. Here, in this case the idea as to
8 Blue Star Ltd vs CC (1999) (108) ELT 245
freedom of expression in form of an advertisement is a part of rights given to all the citizens in
its territory also brings forth an ardent need to look into the inter relation of the concepts
“freedom of speech and expression” and “democracy” because the former cannot function
without the latter and the latter is of no meaning if it does not uphold the former. So, by keeping
in mind the very idea of our constitutional makers, any form of expression which upholds the
integrity of the nation and does not fall under the section of certain reasonable restrictions, it
cannot be restricted unreasonably. Thus, this deduced theory holds quite some importance in
reaching to an idea that, democracy does permit a form of expression which is intended for the
benefit of its state.
FREEDOM OF EXPRESSION AND THE THEORY OF ‘AUTONOMY’
The idea of the theory of individual autonomy lies in either giving a more detailed explanation to
the theory of democracy or in substituting the theory of democracy. According to this theory, the
government is morally bound to respect the "autonomy" (or "liberty") of individuals and it
should not interfere with their freedom to express themselves to others and to receive the
expressions of others. This again brings forth a question that will such a functioning give
exclusive and unrestricted rights of expression to its subjects? Liberation of expression is
entrenched in the Constitution and made the subject of judicial concern because it bulwarks a
special category of human action; an activity deserving of judicial aegis in a political community
that is otherwise governed by majority rule. If liberation of expression does not protect all
possible human actions, then what special category of action does it defend? The proponents of
the "autonomy" predicated theories do not claim that every human act is protected by the
freedom. They postulate that the liberation forfends communication. But why the scope should
be constrained to acts of communication is not immediately ostensible from the term
"autonomy." Thomas Scanlon describes the freedom as: “the consequence of the view that the
powers of a state are limited to those that citizens would recognize while still regarding
themselves as equal, autonomous, rational agents. ... To regard himself as autonomous, a person
must regard himself as sovereign in deciding what to believe and in weighing competing reasons
for action”.9 In the present case too this theory elaborates its importance , when we talk about
9 T. Scanlon, "A Theory of Freedom of Expression" in R.M. Dworkin, ed., The Philosophy of Law (1977) at 162, 163.
democratic ideals being restrictive to unreasonable contents, we certainly do not forget the idea
of protection of the dignity of an individual which further goes on to elaborate that we uphold the
ideals of individual autonomy in the form of rights given to them by the constitution. Thus, this
clearly indicates that Tata Press being out of the purview of unreasonableness is entitled to
publish the content.
JUDGEMENT IN A GLANCE
1. Rule 457 and 458 did not apply to the contents and permission of “Yellow Pages” as
published by Tata Press Ltd.
2. ‘Commercial Speech’ does form a part of Freedom of Expression as enshrined in Article
19(1)(a) of the Constitution.
3. "Publication of advertisements" being a non-utility service cannot come within the
prohibition imposed by Rule 458 of the Rules.
4. The Nigam/union of India cannot restrain the appellant from publishing "Tata Press
yellow pages" comprising paid advertisements from businessmen, traders and
professionals.
5. The appellant shall not publish in the "Tata Press yellow pages" any entries similar to
those which are printed in the 'white Pages' of the "telephone directory" published by the
Nigam under the Rules.
OVERVIEW OF THE JUDGEMENT
The judgement maintained and upheld the integrity of one of the most basic rights in the form of
Article 19(1)(a) of the constitution. It gave a lucid example of a brief interpretation of freedom of
speech and expression. The Apex Court went further to even classifying and defining a concept
of ‘commercial speech’ which were thoroughly implemented in many cases arising thereafter.
The very salient feature of constitution’s dynamism stands in breaking the stereotypes and
brining in changes with time and needs of its citizens.
The basic idea of Expression means that not just the person who expresses has a right but the
person who receives the expression too has the equal amount of right. John Rawls’s ‘Theory of
Justice’ also argues that for the basic requirement of justice, there should be existence of free
speech. C.B. Macpherson in his theory of Democracy notes that Human society that is regulated
by law needs tools which can build human capacities. This follows that human capacities are
valuable. This also follows that to uphold this value of human capacity, we should try to create
an environment through law and this environment will in its true sense function where there shall
be Freedom, Freedom of Expression, of opinions and of speech.
This logical deduction in the judgement also explained that Interpretation of each word of the
Rules of Telegraph was ardently important as it specifically decided the position of purview of
the content (Yellow pages) in question. The meaning of telephone subscribers and telephone
directory as construed by the respondents did not create a great deal of confidence as it did not
come out with any logicality.
Lastly, Tata Press’s ‘Commercial speech’ formed a part of Article 19(1)(a) and they were
allowed to publish their content subject to the regulations mentioned in Rule 457,458 of the
Telegraph Rules. The Apex Court also gave strict measures that if the content in yellow Pages
publishes anything which is same as ‘White Pages’ published by MTNL, it is required to ask for
its permission.
SUGGESTIONS
The plight of the case revolves around a very basic question as to what should be the essential
requirements of a document to form a part of Telephone directory. There have been confusions
regarding the same as the precedents that have been discussed in the article did not lay down a
clear picture of the subject in question. This judgment overall clarifies the scope of some laws
which further elaborate the interpretational aspect of not just the point of law discussed here but
also for further references. The Hon’ble court has given a wider meaning to the phrase ‘free
expression’ which is necessary for a dynamic legal reign to function effectively keeping in the
mind the changing trends. Furthermore, it has set a benchmark for future by clarifying that
‘freedom’ includes a certain reasonable right of an individual or an organization to function
within the realm of defined laws and also by discussing the restrictions which are again provided
by the laws giving ‘freedom’.
BRIEF ABOUT AUTHOR
Nandini Hirani is pursuing B.A. L.L.B from GLS Law College, Ahmedabad, Gujarat. She is
currently working as a senior member at Legal Aid Clinic of GLS Law College. She has
published many articles and research papers on various legal platforms in India. She is a core
member of GLS Moot Court Committee. She is also one of the regulatory authorities of
‘Thought Republic’, a student run debating society. She has interests in Criminal Law,
Constitutional Law and Contract Law. By being a member of LAC, she is contributing in
providing Legal Aid to those in need.