Supreme Court of India
TATA PRESS LTD.versusMAHANAGAR TELEPHONE NIGAM LTD. AND ORS.
- Citation
- 1995 INSC 435
- Decided
- 3 August 1995
- Disposal
- Appeal(s) allowed
- Bench
- KULDIP SINGH
Holding
Commercial speech is protected under Article 19(1)(a) and Rule 458 of the Indian Telegraph Rules bars only the publication of a list of telephone subscribers, not the publication of advertisements, so Tata Press may publish its Yellow Pages but not the white‑pages list without authority.
Summary
Mahanagar Telephone Nigam Ltd. (the Nigam) and the Union of India claimed exclusive rights to publish the list of telephone subscribers under Rule 458 of the Indian Telegraph Rules, 1951, and sought to restrain Tata Press Ltd. from publishing its "Tata Press Yellow Pages" – a buyers' guide comprising paid advertisements. The trial court dismissed the suit, holding the Yellow Pages were not a list of subscribers. The Bombay High Court reversed, treating the Yellow Pages as a telephone directory and granting an injunction. The Supreme Court examined whether the Yellow Pages fell within the meaning of a "list of telephone subscribers" and whether commercial advertisements are protected speech under Article 19(1)(a). It held that commercial speech is part of the constitutional freedom of speech, that Rule 458 only prohibits publishing a list of telephone subscribers, and that advertisements (the Yellow Pages) are not covered by that prohibition. Consequently, Tata Press may publish its Yellow Pages but may not publish the white‑pages list without permission. The appeal was allowed, the High Court judgments set aside, and the suit dismissed.
Issues considered
- The scope of Rule 458 of the Indian Telegraph Rules: does it prohibit publication of advertisements (Yellow Pages) as well as the list of telephone subscribers?
- Whether "commercial speech" such as advertisements is protected under Article 19(1)(a) of the Constitution and can be restricted only under Article 19(2).
- Whether the Nigam can claim a monopoly over the publication of any directory containing advertisements.
Legislation cited
- Constitution of Indias. Article 19(1)(a), s. Article 19(2)
- Indian Telegraph Act, 1885
- Indian Telegraph Rules, 1951s. Rule 452, s. Rule 453, s. Rule 457, s. Rule 458, s. Rule 459
Subjects
commercial speechfreedom of speech and expressionArticle 19Indian Telegraph Rulestelephone directoryyellow pagesadvertisementconstitutional lawmonopolypublic utilityinjunction
Judgment
TATA PRESS LTD. A
v.
MAHANAGAR TELEPHONE NIGAM LTD. AND ORS.
AUGUST 3, 1995
[KULDIP SINGH, B.L. HANSARIA AND S.B. MAJMUDAR, JJ.} B
Constitution of India, 1950: Article 19(1)(a).
Freedom of Speech and Expression-Held 'Commercial Speech' is part.
of freedom of speech and expression-Public at large has right to receive C
'Commercial Speech'-Freedom guaranteed under Article 19(1)(a) can only
be restricted under Article 19(2)-Advertisements as 'Commercial Speech'-
Importance of.
Indian Telegraph Rules, 1951: Rules 452, 453, 458 and 459.
D
Telephone Directory-Right to publish-Directory consisting of two
p01ts-White pages consisting of 'List of Telephone subscribers and 'Yellow
Pages' consisting of advertisements-Separate Publication by TATA-Suit by
Telephone Nigam restraining TATA from publishing 'Yellow Pages-Distinc-
tion between 'White Pages' i.e. List of Telephone Subscribers and 'Yellow E
Pages' i.e. guide of advertisements Discussed-R.ule 458 held mandatory in
natur~But prohibition under Rule 458 held applicable in respect of 'List of
Telephone Subscribers' and not to 'Yellow Pages'-Compilation and Publi-
cation of 'Yellow Pages' held not a Directory.
Rule 458 of the Indian Telegraph Rules, 1951 provides that except F
with the permission of Telegraph Authority no person shall publish any
list of telephone subscribers. The telephone directory published and dis-
tributed by the Respondent-Telephone Nigam consists of the white pages
which contain alphabetical list of telephone subscribers and also 'Yellow
Pages' consisting of advertisements. The publication of the directory is G
entrusted to an outside contractor who in order to meet the expenses for
printing, publishing and distributing the directory is allowed to raise
revenue for himself by procuring advertisements and publishing the same
as 'Yellow Pages' appended to the Telephone Directory. The appellants are
engaged in the publication of the 'Tata Press Yellow Pages' which is a
buyers-guide comprising of a compilation of advertisements given by H
467
468 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A businessmen, traders and professionals duly classified according to their
trade, business or profession.
The respondents, Telephone Nigam and Union of India, filed a suit
before the City Civil Court at Bombay seeking declaration that they alone
have the right to publish and print the list of telephone subscribers; the
B appellants have no right whatsoever to print, publish and circulate the
'Tata Press Yellow Pages'. A permanent injunction restraining the appel-
lants and their agents from publishing the 'Tata Pages' was also sought
on the ground that the said publication was violative of the Indian
Telegraph Rules, 1951.
c The Trial Court dismissed the suit holding that publication of 'Tata
Pages' did not constitute a list of telephone subscribers as contemplated
in Rule 458 of the Rules because: (a) the source for the advertisements
published in the Tata-Pages was different from the telephone directory; (b)
the criterion for listing in the telephone directory and for publication in
D the TATA Pages was different; and (c) the Telephone Directory was
restricted to the area of service by the Nigam whereas the advertisements
in the Tata-Pages relate to parties outside the local area/Bombay.
The respondents preferred appeal before the High Court and a
single judge allowed the same and restrained the appellants from publish-
E
ing the 'Tata Pages' by holding that Rule 458 covered all parts of the
telephone directory including the 'Yellow Pages'; the publication of adver-
tisements in the form of 'Yellow Pages' appended to the white pages was
within the bar contained in Rule 458 of the Rules. The Division Bench of
the High Court upheld the judgment of the single judge.
F
In appeal to this Court on the question whether the 'Tata Pages' is
a Telephone Directory within the meaning of Rule 458 or is a Buyers
Guide/Trade Directory oµtside the scope of the said Rule; whether a simple
'commercial advertisement' comes within the concept of'freedom of speech
G and expression' guaranteed under Article 19(1)(a) of the Constitution :
Allowing the appeal and setting aside the judgment of the High
Court, this Court
HELD : 1. Commercial speech is a part of the freedom of speech and
H expression guaranteed under Article 19(1)(a) of the Constitution. Article
TATA PRESS LID. v. M.T.N.L. 469
19(1)(a) not only guarantees freedom of speech and expression, it also A
protects the rights of an individual to listen, read and receive the saiJ
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 the speaker as well as to the recipient of the speech, the
recipient of "commercial speech" may be having much deeper interest in
B
the advertisement than the businessman who is behind the publication. An
advertisement giving information regarding a life saving drug may be of
much more importance to general public than to the advertiser who may
be having purely a trade consideration. [488-F-G]
c
2. Advertising as a "commercial speech" has two facets. Advertising
which is no more than a commercial transaction, is nonetheless dissemi-
nation of information regarding the product advertised. Public at large is
benefited by the information made available through the advertisement. In
a democratic economy free flow of commercial information is indispen- D
sable. 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 hand-
icapped without there being freedom of "commercial speeches". The public
at large has a right to receive the "commercial speech". [488-C-D]
E
Hamdard Dawakhana (WAKF) Lal Kuan, Delhi and Anr. v. Union of
India and Ors., SCR [1960) 2, 671, distinguished.
Indian Express Newspaper (Bombay) Pvt. Ltd. & Ors. Etc. Etc. v. Union
of India & Ors. Etc. Etc., [1985) 2 SCR 287; Sakal Papers (P) Ltd. and Ors.
v. Union of India, AIR (1962) SC 305 and Bennett Coleman & Co. & Ors. F
v. Union of India & Ors., [1973) 2 SCR 757, relied on.
R.M.D. Chamarbaughwala v. Union of India, (1957) SCR 930, cited.
Lewis J. Valentine v. F.J. Chrestensen, 316 US 52; 86 L.Ed. 1262; G
referred to.
New York Times v.Sullivan, 376 U.S. 254; Bigelow v. Virginia, 421 U.S.
809;Virginia State Board of Phamiacy v. Virginia Citizens Consumer Council,
Inc., 425 US 748; John R. Bates and Van O'Steen v. State Bar of Arizona, 53
L.Ed. 2nd 810;Central Hudson Gas & Electric Corpn. v. Public Service H
470 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A Commission, 447 US 557; Posadas de Puerto Rico Associates v. Tourism Co.
of Puerto Rico, 92 L.Ed. 2nd 266; Board of Trustees of the State University
of New York v. Todd Fox, 106 L.Ed. 388, relied on.
Breard v.Alexandria, 341 US 622, 95 L.Ed. 1233, 71 S Ct 920, 46 Ohio
B. Ops 74;62 Ohio L Abs 210, 35 ALR 2d 335 (1951);Pittsburgh Press Co. v.
Human Relations Comm'n, 413 US 385, 37 L Ed. 2d 669, 93 S Ct
2553;Chaplinsky v. New Hampshire, 315 US 568, 572, 86LEd1931, 62 S Ct.
766 (1942);Roth v. United States, 354, US 476, 484, 1LEd2d 1498, 77 S Ct '
1304, 14 Ohio Ops 2d 331 (1957) and Fur Infonnation & Fashion Council
Inc. v. E.F. timme & Son, 364 F Supp. 16 (SDNY 1973), cited. "'"'
c
3. Right to freedom of speech and expression guaranteed under
Article 19(1)(a) of the Constitution can only be restricted under Article
19(2). The said right cannot be denied by creating a monopoly in favour
of the government or any other authority . "Publication· of advertisements"
D which is a "commercial speech" and protected under Article 19(1) (a) of the
Constitution cannot be denied to the appellants on the interpretation of
rules 458 and 459 of the Rules. The plain language of the Rules indicate
that the prohibition under rule 458 of the Rules is only in respect of
publishing "any list of telephone subscribers". By no stretch of imagination
"publication of advertisements" can be equated with a "list of telephone
E subscribers". The scheme of the Rules make it clear that advertisements
are treated differently under the Rules from "list of telephone subscribers".
Rule 458 of the Rules intends to protect the exclusive property right of
Nigam/Union of India created under Rule 457 in respect of the telephone
directory prepared in terms of Rule 453. "Publication of advertisements"
F being a non-utility service cannot come within the prohibition imposed by
rule 458 of the Rules. [490-C-D; 490-G-H]
4. Rules 458 and 459 of the Rules have to be interpreted in the light
of the findings that "commercial speech" by itself is a fundamental right
G under Article 19(1)(a) of the Constitution and the paid advertisements
comprising 'Yellow pages" attached to the telephone directory is nbt a
public utility service. A telephone directory is an essential instrumentality .
in connection with the peculiar service which the Union of India offers for
the public benefit and convenience. The telephone service being a public
utility service, the telephone authority has rightly been given powers under
H the Act and the Rules to regulate the form and contents of the telephone
TATA PRESS LTD. v. MT.N.L. [KULDIP SINGH,J.] 471
... directory. In the development of this form of public utility service, the A
telegraph authority has found it practicable and profitable to diminish the
cost and increase the profits of operation by making use of its directories
as a means and form of advertising available to its subscribers. "Yellow
Pages" of the telephone directory are wholly paid advertising. It cannot be
disputed that the paid advertising, apart from the light-faced free listing,
B
is not in the nature of a service rendered by a utility. The "Yellow Pages"
attached to the telephone directory issued by the Nigam cannot be a part
of the Nigam's public telephone service. [490-B; 489-E; F-H; 490-A]
S. The Telephone Nigam/Union of India cannot restrain the appel-
lant from publishing "Tata Press Yellow Pages" comprising paid advertise- c
ments from businessmen, traders and professionals. However, the
appellants cannot publish any "list of telephone subscribers" without the
... permission of the telegraph authority. Rule 458 of the Rules is mandatory
and has to be complied with. 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 D
the Rules. The appellant cannot print, publish an entry containing only
the telephone number, the initials, the surname and the address of the
~ businessmen, trader or professional concerned. Consequently, the appeal
is allowed in above terms and the suit filed by the respondent is disposed
of. [491-A-C] E
CIVIL APPELLATE JURISDICTION: Civil Appeal No.6960 of
1994.
From the Judgment and Order dated 8.9.94 of the Bombay High
Court in L.P A.No. 100 of 1994. F
Dr. AM.Singhvi, K.K. Venugopal, Aron Jaitley, Apsi Chinoy, P.V.
Kapoor, Sunil Gupta, P.O. Tyagi, Ms. AK. Verma for JBD & Co., K.V.
Sreekumar, P.P. Tripathi, AK. Sikr~ S.I. Shah and Ms. Madhu Sikri for
the appearing parties.
G
The Judgment of the Court was delivered by
~
KTJLDIP SINGH, J. This appeal has arisen from a civil suit instituted
before the Bombay City Civil Court at Bombay by the Mahanagar
Teleph<'ne Nigam Limited (the Nigam) and the Union of India for a H
A
472 SUPREME COURT REPORTS [1995]SUPP. 2 S.C.R.
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
B "Tata Press Yellow Pages" (Tata - pages). A permanent injunction restrain-
ing the ·Tatas, their agents and servants from printing and/or publishing
and/or circulating_ the "Tata - Pages" being violative of the Indian Telegraph
Act, 1885 (the Act) and the Indian Telegraph Rules, 1951 (the rules) - was
also sought from the Court. The City Civil Court, Bombay by its judgment
dated August 7, 1993 dismissed the suit. First appeal filed by the Nigam
C and the Union of India was heard by a learned single judge of the Bombay
High Court and the learned judge by the judgment dated April 27, 1994
allowed the appeal, set aside the judgment of the trial court and decreed
the suit. Letters Patent Appeal filed by the Tatas was dismissed by a
Division Bench of the Bombay High Court by the impugned judgment
D dated September 8, 1994. This appeal, by way of special leave, is against
the judgment of the Division Bench of the High Court upholding the
learned single judge.
The Nigam is a Government company substantially controlled by the
E Government of India. The Government holds 80% of the total shares of ·
the company. The Nigam is a licensee under the Act and as such is
required to establish, maintain and control the telecommunication services
within the territorial jurisdiction of the Union Territory of Delhi and the
areas covered by the Municipal Corporations of Bombay, New Bombay and
the Thane. Till 1987 the Nigam/Union of India used to publish and dis-
F tribute, on its own, the telephone directory consisting of white pages only.
However, of late, the Nigam started entrusting the publication of its
telephone-directory to outside contractors. From 1987 onwards, the Nigam
has permitted such contractors to raise revenue for themselves, by procur-
ing advertisements and publishing the same as "Yellow Pages" appended
G to the telephone directory. In other words, the telephone directory pub-.
lished and distributed by the Nigam consists of the white pages which
contain alphabetical list of telephone subscribers and also "Yellow Pages"
consisting of advertisements procured by the contractor to meet the expen-
ses incurred by the contractor in printing, publishing and distributing the
H directory.
TATA PRESS LTD. v. M.T.N.L. [KULDIP SINGH, J.] 473
The Tatas are engaged in the publication of the Tata - pages which A
is a buyers-guide comprising of a compilation of advertisements given by
businessmen, traders and professional duly classified according to their
trade, business or profession. It is not disputed that the said compilation
includes unpaid advertisements in which the category/type of business,
trade or profession of the advertiser is listed. It is stated by the appellant B
that the advertisements are published in the Tata - pages on the application
of the party concerned. The only criterion for inclusion of advertisements
in the said compilation is that the advertiser must be engaged in a trade,
profession or business. Three editions of Tata - Pages have already been
published in Bombay in 1992, 1993 and 1994. According to the appellant
such yellow Pages/buyers guides have been published in India since 1984 C
and follow generic international pattern which was introduced in the USA
as far back as 1880. Since 1984 a large number of parties - details have
... been placed on the record - are engaged in the publication of yellow
Pages/trade directories/buyers guides in India.
Rules 452, 453, 457, 458 and 459 of the Rules which are relevant, are D
reproduced hereunder :-
"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 E
system or 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.
F
453. Entries in telephone directories. - For each direct telephone
line rented (i.e. for main connections, direct extensions and PWX
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 G
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.
457. General. - Any telephone directory provided by the Depart- H
474 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.
A ment shall remain its exclusive property and shall be delivered to
it on demand. The department reserves the right to amend or
delete any entries in the telephone directory at any time and
undertakes no responsibility for any omission; and it shall not
entertain any claim or compensation on account of any entry in or
omission from the telephone directory or of any error therein.
B
458. Publishing of telephone directory. - Except with the permis-
sion of the Telegraph Authority no person shall publish any list of
telephone subscribers.
459. Adyertisements.- The Telegraph Authority may publish or
c allow the publication of advertisements in the body of the
telephone directory."
As stated above, the learned trial judge dismissed the suit filed by ....
-
the Nigam and the Union of India. The learned judge compared the
D advertisements published in the Tata - Pages with the Telephone directory
and found as a fact that the 'Tata. - Pages' was a compilation of advertise-
ments given by the businessmen,· traders and professional and as such did
not constitute a list of telephone subscribers as contemplated in Rule 45fi
of the Rules. The learned judge based his conclusions on the reasoning
that the source· for the advertisements published in the Tata - Pages wa:;
E .different from the telephone directory, some advertisements in the Tata -
Pages did not list telephone numbers, the criterion for listing in the
telephone directory and for publication in the Tata - Pages was different ._
for telephone directory the person/party must be a telephone subscriber
whereas for the Tata - pages the advertiser must be a trader, profession.:tl
F or businessmen - and the telephone directory was restricted to the area •lf
service by the Nigam whereas the advertisements in the Tata - Pages relate
to parties outside the local area/Bombay.
Appeal against the Trial Court judgment was heard by a learned
Single Judge of the High Court. The Learned judge agreed with the Trial
G Court that the white pages of the Telephone Directory constituted the 'List
of Telephone Subscriber's whereas the yellow pages consisted of the ad-
vertisements given by the telephone subscribers and others. He further
·accepted that the criterion for listing of entries in the white pages was
different from the criterion for inclusion of advertisements in the yellow
H pages. The learned judge, however, held that Rule 458 covered all p~ts of
TATA PRESS LTD. v. M.T.N.L [KULDIP SINGH, J.) 475
the telephone directory including the yellow pages. According to the A
learned judge 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. The learned judge accordingly allowed the appeal and
restrained the appellant from publishing the Tata - Pages.
The Letters Patent Bench of the Bombay High Court hearing the B
appeal filed by the TATAs against the judgment of the learned single judge
posed the question to be considered by the Bench in the following words:-
"There should be no doubt that a publication in order to amount
to a contravention of the Rules, as quoted above, must in substance C
be a "list of telephone subscribers", for it is the substance that must
count and must outweigh and take precedence over mere ap-
- pearance. Before restraining the defendant Tata Press Ltd. from
publishing or circulating or in any way dealing with the "TATA
Press Yellow Pages", we have to be satisfied that in substance and
in effect the same is a "list of telephone subscribers" or a "telephone D
directory". The case at hand involves questions, not so much of law
but rather of semantics and common sense."
The Bench while dealing with the question observed as under:-
"a list of telephone subscribers" would obviously mean a list of E
persons to whom telephone services have been provided by means
of an installation under the Telegraph Rules or under an agree-
ment. Suppose we, in this High Court, print or publish a Book
containing a list of our judges and qfficers containing their names,
designations, departments they are attached to, their office as well F
as residential addresses and also their telephone numbers in the
office as well as in their residence. Or, suppose, a Bar Association
or a Medical Association prints or publishes a Book containing
the names of their members, their specialisation, addresses of
their offices, chambers and residences along with their respective G
telephone numbers, we are inclined to think that such Books as
aforesaid may not amount to "a list of subscribers" if the dominant
purpose for such publication is not to notify the telephone numbers
only, but mainly to notify who these persons are along with their
designations and/or qualifications or specialisation; and addresses
at which they would be available during as well as after office hours H
476 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A and the telephone numbers published such Books would be there
only to provide a full or an more complete picture. The High Court
or the Bar Association or the Medical Association in such cases
may not be proceeded against for violation of Rule 458 of the
Indian Telegraph Rules, for publishing such books, if the primary
object thereof is not to provide the telephone numbers only, but,
B may be, the telephone numbers also along with various other
relevant matters. If in such books as aforesaid, the names of such
officers or members, who are not subscribers of telephones, are also
published, the same would further go to show that such books
would be not be a list of subscribers."
c
The Bench finally upheld the judgment of the learned Single Judge on the
following reasoning:-
"We have given our best and very serious considerations to the
arguments advanced by Mr. Nariman. We have already indicated,
-
D
we will have to scrutinise and examine the publication Tata Press
Yellow Pages and would have to come to our conclusion as to
whether the same is a Telephone Directory or a List of Telephone
Subscribers from the point of view of the main object and the
dominant purpose of the publication. The fact that has weighed
E with us most is that even though there are some features which
may distinguish the "TATA Press yellow Pages" from a mere
Telephone Directory or a more List of Telephone Subscribers, the
publication would nevertheless be of little or no use if the
telephone numbers printed therein are omitted or deleted. It may
F be that the "TATA Press Yellow Pages" may not be a Telephone
Directory or a List of Telephone Subscribers only, but we are
nevertheless of the clear view that the same is a Telephone Direc-
tory or a List of Telephone Subscribers also ..... reading the
provisions of Rules 452, 458 & 459 together, we will have to hold
that even if a telephone directory or List of Telephone Subscribers
G contain advertisements, may be in large numbers, publication
thereof would nevertheless come within the prohibition of Rule
458 as in such a case the publication, even though not merely a
Telephone Directory or a List of Telephone Subscribers, is also
nevertheless such a telephone directory or List of Telephone
H Subscribers."
TATA PRESS LID. v. M.T.N.L. [KULDIPSINGH,J.) 477
Learned counsel for the appellant has drawn our pointed- attention A
to the above quoted observations of the Division Bench of the High Court
and has vehemently contended that the examination of Tata - pages, even
in the light of the Test laid- down by the High Court, would show that the
said compilation is not a Telephone Directory. A Bar Association or a
Medical Association can publish a List of their respective members.
Similarly, according to the learned counsel, the Associations of profes-
B
sionals, traders or businessmen can publish Lists of their respective mem-
bers. The Tata-pages, he contended, which is a compilation of
advertisements, given by businessmen, traders and professionals, cannot be
equated with a "list of Telephone Subscribers." It is contended that the Tata
- Pages was a Buyer's guide(frade Directory and its content, character and c
function are different from the Telephone Directory. 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
Buyers' 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 D
a particular service. There is plausibility in the contention of the learned
counsel but cannot, by itself, tilt the balance in favour of the appellant.
We are of the view that the answer to the question whether the Tata
- pages is a Telephone Directory within the meaning of Rule 458 or is a E
Buyers Guide(frade Directory outside the scope of the said Rule, depends
. upon the determination of the larger issue whether a simple "commercial
advertisement" comes within the concept of "freedom of speech and ex-
pression" guaranteed.under Article 19(1)(a) of the Constitution of India.
We, therefore, proceed to deal with the constitutional question.
F
Dr. Abhishek Singhvi; learned counsel supporting the case of the
., appellant, has contended that the "commercial speech" is protected under
Article 19(1)(a) read withArticle 19(2) of the Constitution. Mr. Venugopal
and Mr. Arun Jaitley, learned counsel appearing for the respondents have, G
however, contended that a purely commercial advertisement is meant for
furtherance of trade or commerce and as such is outside the concept of
freedom of speech and expression. Reliance was placed by the learned
counsel on the judgment of this Court in Hamdard Dawakhana (WAKF)
Lal Kuan, Delhi and Anr. v. Union of India and Ors., SCR [1960] 2, 671. A
Constitution Bench of this Court speaking through Kapur, J. held as under: H
478 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A "An advertisement is no doubt a form of speech but its true
character is reflected by the object for the promotion of which it
is employed. It assumes the attributes and elements of the activity
under Art. 19(1) which it seeks to aid by bringing it to the notice •
of the public. when it takes the form of a commercial advertisement
B which has an element of trade or commerce it no longer falls within
the concept of freedom of speech for the object is not propagation
of ideas social, political or economic or furtherance of literature
or human thought; but as in the present case the commendation
of the efficacy, value and importance in treatment of particular
diseases by certain drugs and medicines. In such a case, advertise-
c ment is a part of business even though as described by Mr. Munshi
-
its creative part, and it was being used for the purpose of furthering
the business of the petitioners and had no relationship with what
may be called the essential concept of the freedom of speech. It
cannot be said that the right to publish and distribute commercial
D advertisements advertising an individual's personal business is a
part of freedom of speech guaranteed by the Constitution. In Lewis
!. Valentine v. FJ. Chrestensen it was held that the constitutional _.,
right of free speech is not infringed by prohibiting the distribution
in city streets of handbills bearing on one side a protest against
E action taken by public officials and on the other advertising matter.
The object of affixing of the protest to the advertising circular was
the evasion of the prohibition of a city ordinance forbidding the
distribution in the city streets of commercial and b.u:;iness adver-
tising matter. Mr. Justice Roberts delivering the opinion of the
F court said :-
This court has unequivocally held that the streets are proper places ,.
for the exercise of the freedom of communicating information and
disseminating opinion and that, though the states and
municipalities may appropriately regulate the privilege in the
G
public interest, they may not unduly burden or prescribe its
,employment in these public thoroughfares. We are equally clear
that the Constitution imposes no such restraint on government as
respects purely commercial advertising....... If the respondent was
attempting to use the streets of New York by distributing coblliler-
-
H cial advertising, the prohibition of the Code provisions was lawfully
TATAPRESSLID. v. M.T.N.L:[KULDIPSINGH,J.) 479
invoked against such conduct." A
It cannot be said therefore that every advertisement is a matter
dealing with freedom of speech nor can it be said that it is an
expression of ideas. In every case one has to see what is the nature
of the advertisement and what activity falling under Art. 19(1) it
seeks to further. The advertisements in the instant case relate to B
commerce or trade and not to propagating of ideas; and advertising
of prohibited drugs or commodities of which the sale is not in the
interest of the general public cannot be speech within the meaning
of freedom of speech and would not fall within Art. 19(1)(a). The
main purpose and true intent and aim, object and scope of the Act c
is to prevent self-medication or self- treatment and for that purpose
advertisements commending certain drugs and medicines have
been prohibited. Can it be said that this is an abridgement of the
petitioners' right of free speech. In our opinion it is not. Just as in
Chamarbaughwala's case [1957] SCR 930 it was said that activities D •
undertaken and carried on with a view to earning profits e.g. the
business of betting and gambling will not be protected as falling
within the guaranteed right of carrying on business or trade so it
cannot be said that an advertisement commending drugs and
substances as appropriate cure for certain diseases is an exercise
of the right of freedom of speech. Freedom of speech goes to the E
heart of the natural right of an organised freedom-loving society
to "impart and acquire information about that common interest."
If any limitation is placed which results in the society being
deprived of such right then no doubt it would fall within the
guaranteed freedom under Art. 19(1)(a). But if all it does is that
F
it deprives a trader from commending his wares it would not fall
within that term. In John W. Rast v. Van Deman & Lewis Company,
Mr. Justice Mckenna, dealing with advertisements said:-
Advertising is merely identification and description, apprising of
quality and place. It has no other object than to draw attention to G
the article to be sold and the acquisition of the article to be sold
constitutes the only inducement to its purchase."
As we have said above advertisement takes the same attributes as
the object it seeks to promote or bring to the notice of the public H
480 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A to be used by it. Examples can be multiplied which would show
that advertisement dealing with trade and business has relation
with the item "business or trade" and not with "freedom of speech".
Thus advertisements sought to be banned do not fall under Art.
19(1)(a).
B This Court in Hamdard Dawakhana's case primarily relied on the
judgment of the United States Supreme Court in Valentine v. Chrestensen
for the proposition that "purely commercial advertising" is not protected by
Article 19(1)(a) of the Constitution. Dr. Singhvi has placed reliance on
series of judgments of the United State Supreme Court since 1942 when
c Chrestensen's case was decided to show that the Courts in United States
have step-by-step moved away from the Rule in Chrestensen's case, and as
on today "purely commercial advertising" is entitled to full 'First
Amendment' /protection. We may refer to some of the cases. In 1964
United States Supreme Court ruled in New York Times v. Sullivan 376 U.S.
D 254 that editorial advertising, that is, advertising to promote an idea such
as "Save Whale", "Stop War" or "Ban Pesticides" rather than a product like
used car or spaghetti is protected by the First Amendment. In the year
1975 in Bigelow v. Virginia 421 U.S. 804 the United States Supreme Court
.reversed the conviction of a Virginia newspaper editor who had been found
guilty of publishing an advertisement which offered assistance to women
E seeking abortion. Abortion was illegal in Virginia in 1971 when the adver-
tisement was published. The Women Pavilion, a New York group, urged
women who wanted an abortion to come to New York. Blackmun, J.
analysing earlier judgment of the Court observed that speech does not lose
the protection of the First Amendment merely because it appears in the
F form of a commercial advertisement.
Finally, in 1976 the United States Supreme Court has provided a
clearer answer in Virginia State Board of Phamiacy v. Virginia Citizens
Consumer Council, Inc., 425 US 748. The appealee in the said case attack-
ed, as violative of the First Amendment, that part of the statute which
G provided that a pharmacist licensed in Virginia was guilty of unprofessional
conduct if he "publishes, advertises or promotes, directly or indirectly, in
any manner whatsoever, any amount, price, fee, premium discount, rebate
or credit terms .....for any drugs which· may be dispensed only by prescrip-
tion." The District Court declared the quoted portion of the statute "voice
H and of no effect". The appellants before the Supreme Court contended that
TATA PRESS LTD. v. M.T.N.L. [KULDIP SINGH, J.] 481
the advertisement of prescription drug price was outside the protection of A
the First Amendment because it was "commercial speech". Rejecting the
argument the Court speaking through Blackmun, J. held as under:-
"There can be no question that in part decisions the Court has
given some indication that commercial speech is unprotected. In B
Valentine v. Chrestensen, supra, the Court upheld a New York
statute that prohibited the distribution of any "handbill, circular ...
or other advertising matter whatsoever in or upon any street." The
Court concluded that, although the First Amendment would forbid
the banning of all communication by handbill in the public
thoroughfares, it imposed "no such restrains on government as C
respects purely commercial advertising". 316 US, at 54, 86 L Ed
1262, 62 S Ct 920. Further support for a "commercial speech"
exception to the First Amendment may perhaps be found in Breard
v.Alexandria, 341 US 622, 95 L Ed 1233, 71SCt920, 46 Ohio Ops
74, 62 Ohio L Abs 210, 35 ALR2d 335 (1951), where the Court D
upheld a conviction for violation of an ordinance prohibiting door-
to-door solicitation of magazirte subscriptions. The Court reasoned
: "The selling....brings into the transaction a commercial feature",
and it distinguished Martin v. Struthers, supra, where it had
reversed a conviction for door-to-door distribution of leaf-lets
publicizing a religious meeting, as a case involving "no element of E
the commercial." 341 US, at 642-643, 95 L Ed 1233, 71 S Ct 920,
46 Ohio Ops 74, 62 Ohio L Abs 210, 35 ALR2d 335. ......Since the
decision in Breard, however, the Court has never denied protection
on the ground that the speech in issue was "commercial speech".
That simplistic approach, which by then had come under criticism F
or was regarded as of doubtful validity by Members of the Court.
Last Term, in Bigelow v. Virginia, 421 US 809, 44 L Ed 2d 600, 95
S Ct 2222 (1975), the notion of unprotected "commercial speech"
all but passed from the scene. We reversed a conviction for
violation of a Virginia statute that made the circulation of any G
publication to encourage or promote the processing of an abortion
in Virginia a misdemeanor. The defendant had published in his
newspaper the availability of abortions in New york. The adver-
ti~ement in question, in addition to announcing that abortions were
legal in New York, offered the services of a referral agency ill that H
482 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A State. We rejected the contention that the publication was un-
protected because it was commercial. Chrestensen's continued
validity was questioned, and its holding was described as "distinctly
a limited one" that merely upheld "a reasonable regulation of the
manner in which commercial advertising could be distributed."
B Here, in contrast, the question whether there is a First Amend-
ment exception for "commercial speech" is squarely before us. Our
pharmacist does not wish to editorialize on any subject, cultural,
philosophical, or political. He does not wish to report any par-
ticularly newsworthy fact, or to make generalized observations even
c about commercial matters. The "idea" he wishes to communicate
is simply this : "I will sell you the X prescription drug at the Y
price". Our question, then, is whether this communication is wholly
outside the protection of the First Amendment.
D Our question is whether speech which does "no more than propose
a commercial transaction." Pittsbw7;h Press Co. v. Human Relations
Comm'n, 413 US, at 385, 37 L Ed 2d 669, 93 S Ct 2553, is so
removed from any "exposition of ideas", Chaplinsky v. New
Hampshire, 315 US 568, 572, 86 L Ed 1031, 62 S Ct 766 (1942),
and from "truth, science, morality, and arts in general, in its
E diffusion of liberal sentiments on the administration of Govern-
ment," Roth v. United States, 354 US 476, 484, 1 L Ed 2d 1498, 77
S Ct 1304, 14 Ohio Ops 2d 331 (1957), that it lacks all protection.
Our answer it that it is not.
F Generalizing, society also may have a strong interest in the free\
flow of commercial information. Even an individual advertisement,
though entirely "commercial," may be of general public interest.
The facts of decided cases furnish illustrations : advertisements
stating that referral services for legal abortions are available,
Bigelow v. Virginia, supra; that a manufacturer of artificial furs
G promotes his product as an alternative to the extinction by his
competitors of fur-bearing mammals, see Fur Informativn &
Fashion Counci~ Inc. v. E.F. Timme & Son, 364 F Supp. 16 (SDNY
l973); and that a domestic producer advertises his product as an
alternative to imports that tend to deprive American residents of
H their jobs.
TATAPRESSLTD. v. M.T.N.L. [KULDIPSINGH,J.] 483
Moreover, there is another consideration that suggests that no A
line between publicly "interesting" or "important" commercial ad-
vertising and the opposite kind could ever be drawn. Advertising,
however tasteless and excessive it sometimes may seem, is none-
theless dissemination of information as to who is producing and
selling what product, for what reason, and at what price. So long B
as we preserve a predominantly free enterprise economy, the
allocation of our resources in large measure will be made through
numerous private economic decisions. It is a matter of public
interest that those decisions, in the aggregate, be intelligent and
well informed. To this end, the free flow of commercial infomiatio:µ
is indispensable .... And if it is indispensable to the proper alloca- C
tion of resources in a free enterprise system, it is also indispensable
to the formation of intelligent opinions as to how that system ought
to be regulated or altered. Therefore, even if the First Amendment
were thought to be primarily an instrument to enlighten public
decision making in a democracy, we could not say that the free D
flow of information does not serve that goal."
It is, thus, obvious that the United States Supreme Court in Virginia
Board case has virtually overruled Valentine's case decided in 1942. The
Court has ruled in clear terms that the Virginia statute which had the effect
of prohibiting pharmacies from advertising the price of prescription drugs E
violated the First Amendment protection.
In John R. Bates and Van O'Steen v. State Bar of Arizona, 53 L. Ed.
2nd 810, two attorneys licensed to practice law in Arizone placed an
advertisement in a Phoenix newspaper, stating that they were offering "legal F
services at very reasonable fees" and listing their fees for various matters.
The advertisement was in violation of disciplinary rules of the Supreme
Court of Arizona which prohibited Arizona lawyers from publicizing them-
selves, their partners or their associates by "commercial" means. On a
complaint filed by the President of the State Bar, the Board' of Governors G
recommended a one week suspension for each attorney. The two lawyers
them sought review in the Supreme Court of Arizona which rejected their
contention that the disciplinary rules infringed their First Amendment
rights. On an appeal, the United States Supreme Court reversed the
judgment of the Supreme Court of Arizona on the question of First
Amendment rights. Speaking for the court Blackmon, J. held that the H
484 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A blanket suppression of advertising by attorneys violated a free speech
clause of First Amendment. The Court rejected arguments that such
advertising would have an adverse effect in professionalism, would be
inherently misleading, would have an adverse effect on the administration
of justice, would produce undesirable economic effects, and would have an
B adverse effect on the quality of legal services. The Court, however, further
held that such advertising, if false, deceptive or misleading could continue
to be restrained, and that, as with other varieties of speech, such advertising
could be made subject to reasonable restrictions on the time, place and
manner of such advertising.
C After the decision in Virginia Board case, it is almost settled law in
the United States that "commercial speech" is entitled to the First Amend-
ment protection. The Supreme Court has, however, made it clear that
Government was completely free to recall "commercial speech" which is
false, misleading, unfair, deceptive and which proposes illegal transactions.
D A political or social speech and other public - affairs - oriented discussions
are entitled to full First Amendment protection whereas a "commercial
speech" may be restricted more easily whenever the government can show
substantial justification for doing so.
More recent judgments of the Supreme Court of United States in
E Central Hudson Gas & Electric Corpn. v. Public Service Commission, 447
US 557; Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico,
92 L.Ed. 2nd 266; Board of T1Ustees of the State University of New York v.
Todd Fox, 106 L.Ed. 388, clearly indicate that in "commercial speech" cases
a four part analysis has developed. At the outset, it must be determined
.F whether the advertising is protected by the First Amendment. For com-
mercial 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 tht?
governmental interest asserted and whether it is more extensive than is
G 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
H the Constitution. The "commercial speech" which is deceptive, unfair,
TATA PRESS LID. v. M.T.N.L. (KULDIP SINGH, J.] 485
misleading and untruthful would be hit by Article 19(2) of the Constitution A
and can be regulated/prohibited by the State.
This Court in Hamdard Dawakhana's case was dealing with advertis-
ing of prohibited drugs and commodities. The Court came to the con-
clusion that the sale of prohibited drugs was not in the interest of the B
general public and as such "could not be a speech" within the meaning of
freedom of speech and expression under Article 19(1)(a) of the Constitu-
tion. The Court further held in the said case that an advertisement is no
doubt a form of speech
I
but its true character is reflected by the object for
the promotion of which it is employed. Hamdard Dawakhana's case was
considered by this Court in Indian Express Newspaper (Bombay) Private c
Ltd. & Ors. Etc. Etc. v. Union of India & Ors. Etc. Etc., (1985] 2 SCR 287.
The observations in Hamdard Dawakhana's case to the effect that adver-
tising by itself would not come within Article 19(1)(a) of the Constitution,
were explained by this Court in Indian Express Newspaper's case in the
following words :
D
"We have carefully considered the decision in Hamdard
Dawakhana's case (supra). The main plank of that decision was
that the type of advertisement dealt with there did not carry with
it the protection of Article 19(1)(a). On examining the history of
the legislation, the surrounding circumstances and the scheme of E
the Act which had been challenged there namely the Drugs and
Magic Remedies (Objectionable Advertisement) Act, 1954 (21 of
1954) the Court.held that the object of that Act was the prevention
of self-medication and self-treatment by prohibiting instruments
which may be used in advocate the same or which tended to spread F
the evil.... In the above said case the Court was principally dealing
with the right to advertise prohibited drugs, to prevent self-medica-
tion and self-treatment. That was the main issue in the case. It is
no doubt true that some of the observations referred to above go
beyond the needs of the case and tend to affect the right to publish G
all commercial advertisements. Such bread observations appear to
have been made in the light of the decision of the American Court
in Lewis!. Valentine v. FJ. Chrestensen, (supra). But it is worthy
of notice that the view expressed in this American case has not
been fully approved by the American Supreme Court itself in its
subsequent decisions. We shall refer only to two of them. In his H
486 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.
A concurring judgment in William B. Cammarano v. United States
of America Justice Douglas said "Valentine v. Chrestensen..... held
that business of advertisements and commercial matters did not
enjoy the protection of the First Amendment, made applicable to
the States by the Fourteenth. The ruling was casual, almost off
hand. And it has not survived reflection". In Jeffrey Gole Bigelow
B
v. Commonwealth of Virginia the American Supreme Court held
that the holding in Lewis J. Valentine v. FJ. Chrestensen (supra)
was distinctly a limited one. In view of the foregoing, we feel that
the observations made in the Hamdard Dawakhana's case (supra)
too broadly stated and the Government cannot draw much support
c from it. We are of the view that all commercial advertisements
cannot be denied the protection of Article 19(1}(a) of the Con-
stitution merely because they are issued by businessmen."
The combined reading of Hamdard Dawakhana's case and the
D Indian Express Newspaper's case leads us to the conclusion that "commer-
cial speech" cannot be denied the protection of Article 19(1)(a) of the
Constitution merely because the same are issued by businessmen.
Advertising is considered to be the cornerstone of our economic
system. Low prices for consumers are dependent upon mass production,
E 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 avail-
able. The newspaper industry obtains 60/80% of its revenue from advertis-
F ing. 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.
G
A Constitution Bench of this Court in Sakal Papers (P) Ltd. and
Others. v. 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
H to their pages and sizes and to regulate allocation of space for advertise-
- TATA PRESS LID. v. M.T.N.L. [KULDIP SINGH, J.] 487
ment matter. This Court held that the Act placed restraints on the freedom A
of press to circulate. This 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
Paper's case it was argued before this Court that the publication of adver-
tisements was a trading activity. The diminution of advertisement revenue
could not be regarded as an infringement of the right under Article
B
19(1)(a). It was further argued before this 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. c
This 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 D
newspaper will be forced up. If that happens, the circulation will
inevitably go down. This would be no remote, but a direct conse-
quence of curtailment of advertisements... If, on the other hand,
the space for advertisement is reduced the earnings of a newspaper
would be 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 E
space for advertisements is stated to be to prevent 'unfair' com-
petition. It is thus directed against circulation of a news paper.
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). F
This Court in Bennett Coleman & Co. & Ors. v. Union of India & Ors.,
1973 2 SCR 757 held as under:-
"The law which lays excessive and prohibitive burden which would G
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 ar.y number of pages or to circulate it to any number of H
488 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.
A 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
B
which is an essential part of that freedom. A re:;traint 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 circula-
-
tion."
Advertising as a "commercial speech" has two facets. Advertising
which is no more than a commercial transaction, is nonetheless dissemina-
C tion of information regarding the product - advertised, Public at large is
benefited by the information made available through the advertisement. In
a democratic economy free flow of commercial information is indispen-
sable. There cannot be honest and economical marketing by the public at
large without being educated by the information disseminated through
D advertisements. The economic system in a democracy would be hand-
icapped without there being freedom of "commercial speech". In relation
to the publication and circulation of ne~spapers, this 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
E 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 in-
F dividual 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
G interest in the advertisement than the businessman who is behind the
publication. An advertisement giving information regarding a life saving
drug may be of much more importance to general public than to the
advertiser who may be having purely a trade consideration.
H We, therefore, hold that "commercial speech" is a part of the freedom
TATA PRESS LTD. v. M.T.N.L. [KULDIPSINGH,J.] 489
of speech and expression guaranteed under Article 19(1)(a) of the Con- A
stitution.
- Advertising to the question whether Tata's compilation is a telephone
directory as envisaged under the Rules, we may examine the scheme of the
Rules. Rule 452 provides that a copy of the telephone directory shall be B
supplied free of charge for each telephone, extension or party line, rented by
the subscriber. Although the expression "Telephone Directory" has not been
defined under the Rules, but Rule 453 clearly provides that an entry in the
Telephone Directory shall contain the telephone number, the initials, the
sir-name and the address of the subscriber or user. Rule 457 makes a
telephone directory to be the property of the department. It provides that the C
telephone directory shall remain the exclusive property of the department
and shall be delivered to it on demand. The department reserves the right to
amend or delete any entry in the telephone directory at any time and under-
takes no responsibility for an omission. It shall not entertain any claim or
compensation on account of any entry in or omission from the telephone D
directory or of an error therein. Then come the two crucial rules. Rule 458
under the heading "Publishing of Telephone Directory" provides that except
--- with the permission of the telegraph authority, no person shall publish any
list of telephone subscribers. Rule 459 deals with "advertisements" and lays
down that the telegraph authority may publish or allow the publication of
advertisements in the body of the telephone directory. It is no doubt correct E
that a telephone directory is an essential instrumentality in connection with
the peculiar service which the Union of India offers for the public benefit and
convenience. It is as much so as is the telephone receiver itself, it would be
practically useless for the receipt and transmission of messages without the
accompaniment of such directories. The telephone service being a public F
utility service, the telephone authority has rightly been given powers under
the Act and the Rules to regulate the form and contents of the telephone
directory. In the development of this form of public utility service, the
telegraph authority has found it practicable and profitable to diminish the
cost and increase the profits of operation by making use of its directories as G
a means and form of advertising available to its subscribers. In the typical
classified telephone directory, or the "yellow pages" section of the directory
published by the Nigam, there are alphabetical light-faced type listing (for
which there is usually no charge), alphabetical bold faced type listings, al-
phabetical in-column business card listings and display advertising. "Yellow
pages" of the telephone directory are wholly paid advertising. It cannot be H
490 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.
A disputed that the paid advertising, apart from the light-faced free listing, is
not in the nature of a service rendered by a utility. The "Yellow Pages"
attached to the telephone directory issued by the Nigam cannot be a part of
B
the Nigam's public telephone service.
Rules 458 and 459 of the Rules have to be interpreted in the light of
-
our findings that "commercial speech" by itself is a fundamental right under
Article 19(1)(a) of the Constitution and the paid advertisements compris-
ing "Yellow Pages" attached to the telephone directory is not a public utility
service.
C Right to freedom of speech and expression guaranteed under Article
19(1)(a) of the Constitution can only be restricted under Article 19(2). The
said right can not be denied by creating a monopoly in favour of the govern-
ment or any other authority. "Publication of advertisements" which is a "com-
mercial speech and protected under Article 19(1)(a) of the Constitution
D cannot be denied to the appellants on the interpretation of rule 458 and 459
of the Rules, The plain language of the Rules indicate that the prohibition
under rule 458 of the Rules is only in respect of publishing "any list of
telephone subscribers". By no stretch of imagination "publication of adver-
tisements" can be ·equated with a "list of telephone subscribers". A "list" is a
number of names having something in common written out systematically
-
E one beneath the other. "List of telephone subscriber" in terms of Rule 458 of
the Rules would have to be compiled only on the criterion of the persons
listed being telephone subscribers. No person who is not a telephone sub-
scriber could be eligible for inclusion. The said list would necessarily be
restricted to the area serviced by the Nigam. On the other hand "Tata Press
F yellow pages" is a Buyer's Guide comprising of advertisements given by
traders, businessmen and professionals and the only basis/criterion applied
for acceptance/publication of advertisements is that an advertiser should be
a trader, businessman or professional.
The scheme of the Rules make it clear that advertisements are
G treated differently under the Rules from "list of telephone subscribers".
Rule 458 of the Rules intends to protect the exclusive property rights of
Nigam/Union of India created under Rule 457 in respect of the telephone
directory prepared in terms of Rule 453. "Public~tion of advertisements"
being a non-utility service cannot come within the prohibition imposed by
H Rule 458 of the Rules.
TATAPRESSLTD. v. M.T.N.L.[KULDIPSINGH,J.) 491
We, therefore, hold that the Nigam/Union of India cannot restrain A
the appellant from publishing "Tata Press yellow pages" comprising paid
advertisements from businessmen, traders and professionals. We are, how-
ever, of the view that the appellants cannot publish any "list of telephone
subscribers" without the permission of the telegraph authority. Rule 458 of
the Rules is mandatory and has to be complied with. The appellant shall
not publish in the "Tata Press yellow pages" any entries similar to those
B
which are printed in the 'White Pages' of the "telephone directory" pub-
lished by the Nigam under the Rules. We make it clear that the appellant
cannot print/publish an entry containing only the telephone number, the
initials, the surname and the address of the businessmen, trader or profes-
sional concerned. c
We allow the appeal in the above terms and set aside the judgments
of the learned Single Judge and the Division Bench of the High Court.
While holding that Rule 458 of the Rules is mandatory, we dismiss the suit
filed by the respondents. We leave the parties to bear their own costs.
D
CIVIL APPELLATE JURISDICTION : Writ Petition No. 664 of
- 1994.
ORDER
The writ petition is disposed of in the light of our judgment in TATA E
Press Limited v. Mahanagar Telephone Nigam Limited & Ors.
T.N.A. Appeal allowed.
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