INSTITUTE OF LAW,NIRMA

UNIVERSITY

WRITTEN SUBMISION ON
FREEDOM OF SPEECH AND EXPRESSION IN THE CONTEXT OF
COMMERCIAL ADVERTISMENTs IN INDIA

AS PART OF CONTINUOUS EVALUTION PROGRAM

UNDER THE KIND GUIDANCE OF

Dr.Tarkesh Molia
Asst. Prof. Aishwarya Sharma

SUBMITTED BY: –
MAYANK SAHU
17BAL029

SHUBHAM RAGHUWANSHI
17BAL050
 TABLE OF CONTENTS

ACKNOWLEDGEMENT.............................................................................................................................3
DECLARATION .........................................................................................................................................4
ABBREVIATION........................................................................................................................................5
SYNOPSIS/INTRODUCTION......................................................................................................................6
COMMERCIAL ADVERTISEMENT: FREEDOM OF SPEECH AND EXPRESSION...........................................9
1. INTRODUCTION...........................................................................................................................9
2. FUNDAMENTAL RIGHTS VIS-À-VIS COMMERCIAL ADVERTISEMENT........................................10
3. ADVERTISEMENT REGULATIONS PREVALENT IN INDIA ............................................................11
4. REGULATING BODY FOR COMMERCIAL ADVERTISEMENTS IN INDIA.......................................13
5. CONCLUSION:- ..........................................................................................................................14
BIBLOGRAPHY .......................................................................................................................................14

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 ACKNOWLEDGEMENT

I would like to express my sincere thanks to Institute of Law, Nirma University for providing
me this great opportunity to work on this Project.

I would like to express my deep sense of gratitude to my respected & learned teachers, Dr.
Tarkesh Molia & Asst. Prof. Aishwarya Sharma for their valuable help & guidance, I
am thankful to them for the encouragement they have given me in completing the project
report. It was because of their constant support & guidance that I could complete my project
within the stipulated time.

I would also like to express my deep appreciation towards my classmates, friends, seniors & I
am very thankful to my parents for providing me the moral support & encouragement.

Above all I am thankful to the great almighty, the author of knowledge & wisdom for
his unconditional love.

Mayank Sahu
[17BAL029]

Shubham Raghuwanshi
[17bal050]

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 DECLARATION

I hereby declare that the project work titled “ FREEDOM OF SPEECH AND EXPRESSION IN THE
CONTEXT OF COMMERCIAL ADVERTISEMENTS IN INDIA” submitted to Institute of Law, Nirma
University, Ahmadabad, is a record of an original work done by me under the kind guidance
of Dr.Tarkesh Molia & Asst. Prof. Aishwarya Sharma, Faculty Co-ordinators Institute of
Law, Nirma University Ahmedabad.

Mayank Sahu
[17BAL029]
Shubham Raghuwanshi
[17BAL050]

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 ABBREVIATION

& AND
UOI Union of India
IPC Indian Penal Code
Govt. Government
Hon’ble Honerable
i.e. That is
No. Number
Pvt. Private
SC Supreme Court
U/S Under Section
v. Versus
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 SYNOPSIS/INTRODUCTION

1. TITLE

FREEDOM OF SPEECH AND EXPRESSION IN THE CONTEXT OF COMMERCIAL

ADVERTISEMENTS IN INDIA.

2. STATEMENT OF PROBLEM

The preamble to the Indian constitution guarantees certain freedoms to every individual,
one such freedom is the right to freedom of speech & expression enshrined under article
19(1) (a) of the Indian constitution. It states that every individual has a right to freedom
of speech & expression. However, this freedom comes with certain exceptions & can be
regulated & even curtailed by the state in certain cases. These exceptions are mentioned
in Article 19 (2) of the Indian Constitution & include security of the state,
friendly relations with foreign states, public order, decency or morality, &
contempt of court, defamation or incitement of an offence.

This article has been interpreted by the Hon’ble SC in various judgments & in one such
judgment the court held that Article 19 (1) (a) includes right to view or receive
information & as a result of this judgment the freedom of press stand on a strong footing
today. However, with the changing needs of time & increased demand of capital, today
both press & media have started depending on commercial advertisements to earn
profits. At the same time the budget of companies for promotion has also increased to
induce more & more public to avail their products & services, sometimes leading
to misrepresentation & fraud by these companies for personnel gains. These
advertisements often lead to dispute in the society by showcasing such products &
services which are detrimental to the religious sentiments of the people resulting in a
chaotic situation. This is the reason why freedom of speech & expression has been
reasonably restricted.

In this work the researcher has tried to analyse whether commercial advertisements are
protected under the wide ambit of freedom of speech & expression, & if the answer is
yes than are they regulated under the broad head of reasonable restrictions mentioned in
Article 19 (2). The researcher has further tried to analyse the need for a uniform law for
regulating commercial advertisements in our country.

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3. REVIEW OF LITERATURE
A CROSS NATIONAL ANALYSIS OF ADVERTISEMENT CONTENT.
This article focuses on the analysis of advertisement what are the impacts of
advertisement & how advertisement misrepresents public & how govt. has restricted
it.
REVIEWING THE CONCEPT OF ADVERTISING FROM THE PRINT MEDIA PERSPECTIVE.
This article helped the researcher to know what advertisement is &
what advertisements can be printed & how advertisement influences the mind or
choices of people.
THE INFLUENCE OF CONSTITUTION IN THE REGULATION OF COMMERCIAL

ADVERTISEMENT.

This article tells about what are the regulation of advertisement what problem does
advertisement face & how advertisement has been restricted.
4. OBJECTIVES
1. To examine whether right to advertisement is part of freedom of speech &
expression.
2. To examine whether there is any advertising regulation in India.
3. To examine whether right to advertise is an absolute right in case of
commercial speech like advertisement.
5. HYPOTHESIS
1. Freedom of speech & expression gives right to advertise with certain
reasonable restrictions.
2. Advertising is no more or less than a commercial transaction, however, it
spreads information about the advertised product through which the general public at
large is benefited. In a democratic economy, the free flow of commercial
information is essential. Therefore, any restriction on advertising would affect
the fundamental right article 19 (1) (a) on aspects of propagation, publication &
dissemination.
3. The general public has the right to view & receive commercial information. Article
19 (1) (a) protects the rights of an individual to listen, read & receive such speech.
The protection of article 19 (1) (a) is available to both the speaker & the addressee of
the speech.

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6. RESEARCH QUESTION
a. Are commercial advertisements a part of right to freedom of speech & expression?
b. Can commercial advertisement be reasonably restricted under article 19 (2)?
c. Are commercial advertisement regulated in India?
d. Is there any need for a central regulatory body or agency to regulate
commercial advertisement in India?
7. METHODOLOGY

The author has used the ‘Analytical method of research’. The author has used the facts &
information already available & has analysed these in order to critically evaluate
the available material & answer the statement of problem.

The source of data used is majorly secondary data, available in:

Publications of the central, state, & local govt.

Publications by foreign govt. & international bodies.
Books, magazines & newspapers.
Reports & journals prepared by research scholars, universities in the said field.
8. TENTATIVE CHAPTERISATION
1. Introduction
2. Fundamental Rights vis-a-vis Commercial Advertisement
3. Regulation of Advertisements in India
4. ASCI as a regulating body for Commercial Advertisement
5. Conclusion / Suggestions

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 COMMERCIAL ADVERTISEMENT: FREEDOM OF SPEECH AND
EXPRESSION

1. INTRODUCTION
Fundamental right to freedom of speech & expression is defined under article 19 (1) (a) of
Indian constitution which states that every citizen of India has the right to express freely any
idea, opinion, information etc. through any medium but subject to reasonable
restrictions. does not allow to utter anything that results into slander, libel or defamatory in
nature, Court in his various judgement has broaden the definition of 19 (1) (a) which
includes right to receive & spread information which also includes right to advertise through
which public in general is benefitted by it & which also have the impact on the choices &
behaviour of the people. Advertisement which is no more or less than a transaction,
advertisement is any notice, circular, or any other document expressed or viewed by audio or
visual or any other medium, It is the way to influence the consumer to avail their product &
which also lets us to know what is product about who is selling it & at what price, it also
allows us to compare many products & select the best one but it sometimes misrepresent them
just to earn profit, advertisement maker should ensure that the published advertisement should
be truth, should not be illegal & must not misguide the society so to protect consumer
there are various legislation that governs commercial advertisement. As per section 2 (a) of
1
drugs & remedies act,1954 advertisement is defined as any document, notice or circular
or communicated orally or any medium of light or by means of sound or by any other means.
2
As per section 3 (a) of Cigarettes & Other Tobacco Products act, 2003 advertisement is
defined as any visible representation in form of notice or circular or any other document &
communicated orally or any medium of light or any other means. As per advertising standards
3
council of India, 1985 advertising is defined as any audio or visual representation or
announcement made by any means of sound or light or any notice circular or any
document published by printing displaying or circulating to public. Commercial
advertisement that has occupied today’s cinema media & television industry in a very
profound manner. These platforms are used by different companies to promote their
products & to reach out to general public at large to induce them to buy their
products & services. Commercial advertisements benefit general public by providing
them with information pertaining to goods & services. While talking about the positive
aspects of commercial advertisements we also need to have a look at the
1
Act no. 21 of 1954.
2
Act no. 34 of 2003.
3 th
www.ascionline.org (last accessed: 16 September 2018

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 negative aspects of the same where companies sometimes misuse these advertisements
for committing malice which often leads to defaming different communities &
religion. Companies for making illegal gains sometimes use it as a means to deceive general
public.

2. FUNDAMENTAL RIGHTS VIS-À-VIS COMMERCIAL ADVERTISEMENT

Commercial advertisement is a notice, circular, announcement or any document to the

general public at large by means of audio or visual form or by any other means to promote an
idea or product or to influence people to buy their products or services. Commercial
advertisements is an expression of human thought or an idea as a result of which it falls in the
ambit of article 19 (1) (a) of the Indian constitution that says freedom of speech & expression
that gives right to every citizen of India so that they can freely express their idea or thoughts
with reasonable restrictions imposed in article 19 (2) to maintain social order, decency,
foreign relations etc. freedom of speech & expression also includes freedom of
communication, freedom of press, right to know, right to silence & right to publish opinion,
freedom of speech & expression gives right to receive & spread information & also includes
right to communicate it through audio or visual or any other medium to the general public at
large. Every individual has right to listen or right to know what one desire’s to & no one can
force him to do so. Article 19 (2) which defines the restrictions that can be imposed on the
article 19 (1) (a) of fundamental right, the commercial speech i.e. untruthful, unfair or
deceptive in nature would fall in article 19 (2) & can be allowed or restricted by the state

Commercial advertisements does not include or does not allow an individual to advertise the
products or services contrary to public interest such as advertising tobacco products,
psychotropic substances etc, & thus, protection under article 19 (1) (a) cannot be
claimed, commercial advertisement also does not include trade & commerce of products &
services as well as to advertise individual business this was held by the Hon’ble SC of
4
India in the landmark judgement of the Hamdard dawakhana v. UOI. However, in Tata
5
Press Ltd. V. Mahanagar Telephone Ltd., Hon’ble SC broaden the ambit of article 19 (1) (a)
that does not only include freedom of speech & expression but also protects right of every
citizen of India
to listen, read & receive the information i.e. circulated through advertisements.
4
AIR 1960 SC 554.
5
1995 AIR 2438, 1995 SCC (5) 139.

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 6
As per section 3 (1) of Newspaper Act, 1956 , which permits the allocation of space
for advertisement which affects the circulation or distribution of paper & on the other hand if
the space for advertisement is reduced which will increase the prices of newspaper & would
lead to less no. of circulation & would be violative of article 19 (1) (a), In case of Sakal
7
Papers (p) Limited v. UOI the Hon’ble court held that it would violative of article 19 (1) (a).

8
In case of Indian Express v. UOI the Hon’ble court held that all commercial advertisement
cannot be denied the protection under article 19 (1) (a) on the basis that they are issued by
businessman, with the curtailment on advertisement it will increase the price of newspaper
which will disturb its circulation which will interfere with the right of freedom of speech &
expression.

Reading Hamdard Dawakhana case & Indian Express case the court in case of Tata Press Ltd
v. Mahanagar Telephone Nigam Ltd. The Hon’ble court held that all commercial speech
cannot be denied, the public in general has the right to read, listen or receive & under article
19 (1) (a) there is protection to both the speaker & the receiver.

Advertising is the commercial speech which contains two things:

1. Advertising is a commercial transaction or circulating the information about the product

advertised, public in general is benefitted by the available information
therefore, restriction on it would be violative of article 19 (1) (a).

2. Public in general has the right to receive information available through advertisement &
article 19 (1) (a) protects the right of individual to listen, read or receive the information &
provides protection to both the speaker as well to the receiver.

3. ADVERTISEMENT REGULATIONS PREVALENT IN INDIA

Article 19 (1) (a) freedom of speech & expression which also includes freedom to
communicate or express any idea, feeling or information & also allows to advertise
the product, with reasonable restrictions provided under article 19 (2) of Indian
Constitution,
9
there are various law that relate to advertisement are Consumer Protection Act, 1986 ,

6
Act no. 45 of 1956.
7
AIR 1957 SC 578.
8
1986 AIR 515, 1985 SCR (2).
9
Act no. 68 of 1986.

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 10
Cigarettes & other Tobacco Products Act, 2003 , Cable Television Networks (Regulations)
11 12
Act,1995 & Cable Television Networks (Amendment) Rules, 2006 , Drugs & Cosmetics
13
Act, 1940 , Prenatal Diagnostic Techniques (Regulation & Prevention of Misuse) Act,
14 15
1994 , IPC, 1860 , Press council of India Act,1978 etc.

CONSUMER PROTECTION ACT, 1986:- Section 6 of CPA gives right to every consumer to be
informed about the quality, quantity, price of product to protect consumer, section 2 (r) which
defines unfair trade practice of CPA covers the ambit of false advertisement or
misrepresentation of advertisement.

CIGARETTES AND OTHER TOBACCO PRODUCTS ACT, 2003:- section 5 of this act prohibits
advertisement of tobacco products by any means of advertise audio or visual or by any means
of advertisement. No person can promote tobacco products either the person who is engaged
in production, distribution or supplying tobacco products.

CABLE AND TELEVISION NETWORKS (REGULATIONS) ACT, 1995:- Section 6 of this act says
that no person can advertise by means of cable unless the advertisement fall under the define
code of advertisement in this act.

CABLE TELEVISION NETWORKS (AMENDMENT) RULES, 2006:- Rule 7 of this

amendment act laid down the advertisement code for cable services to ensure that
advertisement does not lead to defamation, slander, libel, or decency, etc.

DRUGS AND COSMETICS ACT, 1940:- Section 29 of this act imposes penalty
whosoever advertise any product related to drug which is not in public interest, punishment is
fine with imprisonment fine can be up to five hundred rupees & imprisonment up to 10 years.

PRENATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT,

1994:- It is illegal to determine pre-natal determination of sex & govt. of India prohibits it &
is defined as punishable offence u/s 22 of this act.

10
Act no. 34 of 2003.
11
Act no. 7 of 1995 .
12
Act no. 2 of 2003.
13
Act no. 23 of 1940.
14
Act no. 57 of 1994.
15
Act no. 45 of 1860.

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 INDIAN PENAL CODE, 1860:- It prohibits the publication of advertisement that are not
in interest of public in general, prohibits publication which are defamatory in nature, or
creates dispute in the society. Whosoever doing so will be punished under IPC.

PRESS COUNCIL OF INDIA ACT, 1978:- is an act to help newspaper or news agencies
to maintain their right & build a code of conduct for newspaper, news agencies & journalist if
the code of conduct is not followed it can warn or censure the newspaper.

Other professionals like advocates, chartered accountant, company secretariat, &

cost accountants strictly enforce the ban on advertisement so that they cannot do
false advertisement to gain publicity or to falsely to attract clients.

4. REGULATING BODY FOR COMMERCIAL ADVERTISEMENTS IN INDIA.

ASCI (Advertising Standards Council of India) is a self-regulatory voluntarily body which

16
was established in 1985 & registered as non-profit company u/s 25 of Companies Act 1956 ,
it is a non-governmental body which protects the interest of consumer, ASCI seeks
that advertiser is following code of conduct of advertisement, it seeks that advertisement
should be truth, legal & should be in interest of general public advertiser should not publish
such information i.e. illegal, defamation, etc. or such advertisement creating chaos in
society. It comprises members from advertising, marketing, & media companies &
other advertising agencies.
ASCI follow four set of codes:-
1. To ensure consumer the truthfulness & honesty advertisement & safeguarding from
misleading or fraud advertisement.
2. To ensuring that advertisement is not offensive or against the norms & standards of
society.
3. Safeguarding from the advertisement which are hazardous in nature or not in
the interest of public in general.
4. To ensure fair competition in advertisement.

ASCI comprises of board of governors & consumer complaint council, board of governors
contains 16 member four-four from each department & CCC contains not more than twenty
one members from these 12 members are from civil society, & rest are advertisement
practitioner, CCC decides on the complaint of the consumer in a period of 4 to 6 weeks.

16
Act no. 1 of 1956.

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5. CONCLUSION:-

Commercial advertisement was not a part of art. 19 (1) (a) but SC deciding on the judgement of
Tata Press Ltd v. Mahanagar Telephone Nigam Ltd. held that commercial advertisement are
the part of article 19 (1) (a) and are protected under the same, no restrictions other than defined
in art. 19 (2) can be imposed. Art. 19 (2) restrict such advertisements which are
slander, libel or defamatory in nature or not in interest of public in general.
Commercial advertisement are regulated in India by various legislation or acts but there is
ASCI, a non- statutory regulatory body that regulates advertisement in India and protects
the interest of public in general and also entertains complaint from consumer when
consumer are misrepresented by fake or fraud advertisement.

BIBLOGRAPHY

BOOKS:-

nd
Durga Das Basu; Commentary on Constitution of India, 22 Edition.
M P. Jain; Indian Constitutional Law, eight edition

ARTICLES:-

A Cross national analysis of advertisement content.

Reviewing the concept of advertising from the print media perspective.
The influence of constitution in the regulation of commercial advertisement.

DIGITAL SOURCES:-

Manupatra, www.manupatrafast.com
Jstor, www.jstor.org
Shodhganga, www.shodhganga.inflibnet.ac.in

STATUTES:-

Constitution of India.

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