By: Shailja Rawal

Sometimes, the fundamental rights granted by the Constitution of India can themselves be discriminatory in nature. It seems absurd, but sadly, this is what the reality offers. Article 19(1)(a), which provides for freedom of speech and expression, categorises different kinds of speech, and subsequently, offers them different levels of protection. This article aims to highlight some of the already existing categories such as commercial speech, non-commercial speech etc. and explores the anomaly in the amount of protection granted thereof.

Commercial speech is defined as the speech which proposes a commercial transaction or is an expression solely related to the economic interest of the speaker and his audience. If put simply, it is an expression of commercial interest. Advertisements are also a form of commercial speech because their primary aim is to induce the buyer of the product to make a purchase, and thus, it is no less than a commercial transaction. However, despite the recognition of advertisements as commercial speech, historically speaking, it was not given due protection. The judgment in Hamdard Dawakhana v Union of India stated that advertisements as a form of commercial speech cannot be protected under Article 19(1)(a) as they have an element of trade and commerce, and thus, this economic incentive mars the object of propagation of social ideas and thoughts. These advertisements were considered similar to individuals’ personal business strategies, and thus, denied protection under Article 19(1)(a). This reasoning was borrowed from a U.S. judgment which was later rendered as casual and offhand. This opinion was significantly changed after the Tata Press case which concluded that commercial speech is indeed a part of Article 19(1)(a). It was held that the public’s right to receive information by way of advertising is also included in the phrase ‘speech and expression’. It was further asserted that commercial speech forms the cornerstone of an economic system as low prices are dependent on voluminous production or high sales which are a result of advertising. Thus, disregarding the intention of profit which might have been there in the mind of the producer, commercial speech was included within the ambit of Article 19(1)(a).

Before the story seems similar to a fairy tale excerpt which has a happy ending, one important observation to be made is that since the Tata Press decision was given by a division bench and the Hamdard decision was given by a constitutional bench, it was merely clarificatory in nature, and technically, has not overruled the latter judgment till date. Thus, although logically arguing that commercial speech is important in the given aspects, that is, it leads to the dissemination of information thereby helping consumers to make an informed choice which supports the public interest, and helps in keeping the prices down, thus, running in favour of the economy, nonetheless, it has consistently been given a stepmotherly treatment. Simply speaking, judges can still be obligated to uphold the Hamdard judgment because, technically, it has not been overruled yet and still subsists as a ‘good law’.

Often, the little protection given to commercial speech is justified in terms of the distinction prevalent between commercial and non-commercial speeches in U.S. judgments. However, this article argues that such an approach does not justify the little protection granted to commercial speech. Two differences highlighted till now are that commercial speech is supposedly more objective than non-commercial speech because it is more verifiable, and secondly, since the objective of commercial speech is profit-oriented, it is claimed to be more durable. Both the aforementioned differences are superficial and do not justify any difference in the levels of protection granted. The first distinction of commercial speech being more objective is not true as there are certain advertisements which are mere political claims and do not indicate anything towards their verifiabilities, such as the claim that the burgers of KFC are better than those of McDonald’s, or the advertisement where it is shown that as soon as a  man applies deodorant, girls get attracted towards him. Even non-commercial speech such as scientific speech is sometimes obvious and objective in nature. Along with this, even if we assume that the distinction is valid, the little protection granted is not justified. Rather, it should have been the other way around. Thus, if a speech is objective, it means that the speaker is more careful with his words and the listener is not prone to misleading advertisements which justifies a need for less government interference and not more. Secondly, the motive or intent behind making the claim makes no difference and is not sufficient to render a speech as commercial solely on such basis. Apart from advertisements, many other entities such as news broadcasters, film producers, book publishers etc. indulge in speeches with a motive of profit but are still entitled to freedom of speech and expression. 

Moreover, the durability of speech is not purely a function of the economic interest behind it; other interests such as religious feelings or artistic impulses can be just as strong as economics, and sometimes even stronger. Thus, this article highlights the superfluous distinction made by court decisions, and in a way, the discriminatory approach followed towards commercial speech.

On the other hand, non-commercial speech or such speech made on a political motive is given full protection on the presumption that it is necessary to obtain political truth and ensure a representative democracy. Even today, the protection granted to commercial speech is qualified rather than being absolute in nature. Thus, political speech continues to retain a preferred status and is said to enjoy the most amount of protection. Its restriction is also justified on the grounds laid in Article 19(2) in the context of India and is not subject to government regulation in the context of the US.

On a concluding note, this article has attempted to show the existing disparities in the levels of protection by vague categorisation of speech. At the heart of the problem is the insistence upon the strict classification of all speech as either commercial or non-commercial, which in the author’s opinion, is not the best solution available. In a marketplace of goods and services, advertising plays both informational and transactional roles. The objective is the same, i.e., to encourage the reader to take action, be it in the political, ideological, or commercial sense. It will be an oversimplification if it is said that an advertisement with profit motive serves no non-commercial information to the public, or conversely, that a non-commercial speech will not result in any economic gain whatsoever. It also gives the government a dangerous weapon by which it can curb speech and expression of its citizens according to its own whims and fancies by merely terming it as being ‘commercial’ in nature as What is protected today as expression may become as vulnerable as commercial speech tomorrow. This will result in a chaotic situation, thereby violating the values of certainty and predictability which together constitute the core of a modern legal system. Thus, in order to achieve the full scope of Article 19(1)(a), the absurd hierarchy adopted in the current times should be disregarded while, of course, keeping false and deceptive advertisements outside the scope of full protection, i.e., restricting them on the grounds laid in Article 19(2).

(Shailja is currently a law undergraduate at National Law School of India University, Bengaluru. She may be contacted at shailjarawal@nls.ac.in.)

Cite as: Shailja Rawal, ‘Step-motherly Treatment Given to Commercial Speech under Article 19(1): A Critical Analysis of the Existing Hierarchy’ (The RMLNLU Law Review Blog, 01 May 2020) <https://rmlnlulawreview.wordpress.com/2020/05/01/step-motherly-treatment-given-to-commercial-speech-under-article-191-a-critical-analysis-of-the-existing-hierarchy> date of access.