Advertisement and Freedom of Speech in India

The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restriction, or repression by the government. Advertising is a form of communication for marketing and used to encourage orpersuade an audience (viewers, readers or listeners; sometimes a specific group) to continue or take some new action.



Article 19(1)(a) guarantees to all citizens the freedom of speech and expression. The freedom of speech and expression means the freedom to convey effectively one’s thoughts and feelings.The freedom of speech and expression is a fundamental freedom, one without which a liberal society cannot exist. Under the freedom of speech and expression, the freedom of media is also implied. Any expression of ideas, values, opinions communicated to the the public at large through the various media inter alia- press, films, radio, television and all other forms of mass communication come under what the Apex Court interprets as 'commercial speech' or 'commercial expression' under the Freedom of speech and expression.

Pic Courtesy- Euphrates Institue

Apex Court has held advertisements to be 'Commercial Speech'

The Supreme Court of India has held that advertisements, regarded as commercial speech, form part of the fundamental right to freedom of speech and expression recognised under Article 19(1)(a) of the Constitution of India.

Illustration of restriction on Speech- Political Speech V/s Commercial Speech

Freedom of speech and expression is one of the most important Fundamental Rights available to a citizen of a liberal, democratic country. Speech can be categorized inter alia most critically important from the point of view of the spirit of democracy to what might constitute ‘commercial speech’ which are expression of ideas, values etc with the end game of vowing consumers to further business interests.

Hence what may constitute political speech may be given the utmost protection for free dissemination of ideas and dissent. For example the freedom of speech in light of discussions in the parliament are unbridled with absolutely no censorship or restrictions barring un-parliamentary language.

In contrast ‘advertisements’ or what may be construed as ‘commercial expression or speech’ have the primary effect of ostensibly influencing a consumer’s purchasing habits along with promoting actual products and services for public consumption that could be harmful to the public or the state or both- is subjected to much, much more stringent standards than ‘political speech’ when the question of the freedom of its expression is raised.

Benchmark case - HAMDARD DAWAKHANA v.UNION OF INDIA (Constitutional Bench)

Brief Facts- Parliament of India enacted a statute that was aimed at controlling advertisements of drugs in some specified cases [Drugs and Magic Remedies (ObjectionableAdvertisements) Act (1954)]. 

Issue- The constitutionality of this Act was challenged by the plaintiff on the grounds that itrestricted his right to freedom of speech and expression unfairly, in contravention of Arts19(1)(a) and Art 19(2) and also that it violated his rights to carry on business because therestrictions were allegedly in contravention of Art 19(1)(g) 

Judgment-

The content and intent of theadvertisement is extremely important when deciding whether it deserves protection under Arts 19(1)(a) and 19(2). “When it (advertisement)takes the form of a commercial advertisement which has an element of trade and commerce, it no longer falls within theconcept of freedom of speech, for the object is not propagation of ideas, social political or economic, or furtherance of literature or human thought, but the commendation of theefficacy , value and importance of certain goods.”

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 the Freedom of Speech guaranteed under Article 19(1)(a) because they have “no relationship with the essential concept of the freedom of speech.”

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Pic Courtesy- Racolb Legal

Legislative Framework regulating advertisement as a means of expression or speech

With respect to advertising, the Ministry of Information and Broadcasting is the wing of the Government of India which broadly deals with content regulation in television and radio. In 2008, it set up the Electronic Media Monitoring Centre with a view to monitor content on television and report violation of its Programme and Advertising Code.

At present, the Advertising Standards Council of India (ASCI) is the foremost body for the regulation of advertisements in India. It promotes self-regulation in advertising, ensuring the protection of the interests of consumers. One of the most important features of this body is its Consumer Complaints Council (CCC). Recently ASCI upheld a complaint against an advertisement of Lifebuoy soap (Hindustan Unilever Ltd) claiming 10 times more protection from germs as compared to other soaps which was not substantiated.

Legislations such as the Consumer Protection Act, 1986, the Indecent Representation of Women (Prohibition) Act, 1986, the Food Safety and Standards Act, 2006 (Check Nestle- Maggi case), the Drugs and Cosmetics Act, 1940 and many others relating to the content and ethics of advertisements have been enacted. 

The statotury and judicial trends indicate that more and more liability is being placed heavily on manufactureres and companies which advertise freely without first substantiating and ensuring the opinions or statements expressed are truthful or not. Hence in the current market scenario it is getting tougher for advertisers to misuse the trust of consumers. Reforms which are trying to restrict the freedom of speech in commercial interactions with consumers through advertisments remains a fundamental right, but these companies are no longer allowed to write, print etc anything in an advertisement until and unless the same is true.