BY

NANDINI HIRANI

INTERN

2ND YEAR

GLS LAW COLLEGE AHMEDABAD,

GUJARAT

Mob-7016039337

Mail id – nandini137@icloud.com

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.