Advertising is considered to be the cornerstone of our economic system. Low prices for consumers are dependent upon mass production, mass production is dependent upon volume sales, and volume sales are dependent upon advertising. Apart from the lifeline of the free economy in a democratic country, advertising can be viewed as the life blood of free media, paying most of the costs and thus making the media widely available.

The newspaper industry obtains 60/80% of its revenue from advertising. Advertising pays a large portion of the costs of supplying the public with newspaper. For a democratic press the advertising “subsidy” is crucial. Without advertising, the resources available for expenditure on the “news” would decline, which may lead to an erosion of quality and quantity. The cost of the “news” to the public would increase, thereby restricting its “democratic” availability.

Sakal Papers (p) Ltd. and others. vs. Union of India

A Constitution Bench of Supreme Court in Sakal Papers (p) Ltd. and others. vs. Union of India AIR 1962 SC 305 considered the constitutional validity of the Newspaper (Price and Page) Act, 1956. The said Act empowered the Government to regulate the prices of newspaper in relation to their pages and sizes and to regulate allocation of space for advertisement matter.

The Court held that the Act placed restraints on the freedom of press to circulate. The Court further held that the curtailment of the advertisements would bring down the circulation of the newspaper and as such would be hit by Article 19(1) (a) of the Constitution of India.

In Sakal Papers’s case it was argued before the Court that the publication of advertisements was a trading activity. The diminution of advertisement revenue could not be regarded as an infringement of the right under Article 19(1) (a). It was further argued before the Court that devoting large volume of space to advertisements could not be the lawful exercise of the right of freedom to speech and expression or the right of dissemination of news and views. It was also contended that instead of raising the price of the newspaper the object could be achieved by reducing the advertisements. The Court rejected the contentions and held as under:-

“Again S.3(1) of the Act in so far as it permits the allocation of space to advertisements also directly affects freedom of circulation. If the area for advertisements is curtailed the price of the newspaper will be forced up. If that happens, the circulation will inevitably go down. This would be no remote, but a direct consequence of curtailment of advertisements …If, on the other hand, the space for advertisement is reduced the earnings of a newspaper would go down and it would either have to run at a loss or close down or raise its price.

The object of the Act in regulating the space for advertisements is stated to be to prevent ‘unfair’ competition. It is thus directed against circulation of a newspaper. When a law is intended to bring about this result there would be a direct interference with the right of freedom of speech and expression guaranteed under Article 19 (1) (a).”

Bennett Coleman & Co. & Ors. vs.Union of India

The Court in Bennett Coleman & Co. & Ors. vs.Union of India & Ors. 1973 2 SCR 757 held as under:-

“The law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will not be saved by Article 19 (2). If the area of advertisements is restricted, price of paper goes up. If the price goes up circulation will go down. This was held in Sakal Papers case (supra) to be the direct consequence of curtailment of advertisement. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression.

This freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under Article 19 (1) (a) on the aspects of propagation, publication and circulation.”

Commercial speech”

Advertising as a “commercial speech” has two facets. 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 honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of “commercial speech”.

In relation to the publication and circulation of newspapers, the Court in Indian Express newspaper’s case, Sakal paper’s case and Bennett Coleman’s case has authoritatively held that any restraint or curtailment of advertisements would affect the fundamental right under Article 19(1) (a) on the aspects of propagation, publication and circulation. Examined from another angle, the public at large has a right to receive the “Commercial speech”.

Article (19) (1) (a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements. The protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech.

The recipient of “commercial speech” may be having much deeper interest in the advertisement than the businessman who is behind the publication. An advertisement giving information regarding a lifesaving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.

After considering the above mentioned aspects, the court in ‘Tata Press Limited v. Mahanagar Telephone Nigam (1995)’ held that “commercial speech” is a part of the freedom of speech and expression guaranteed under Article 19(1) (a) of the constitution.


Tata Press Limited v. Mahanagar Telephone Nigam (1995)