By Navya Yadav[1]
In Supreme Court of India
| NAME OF THE CASE | Tata Press Limited v. Mahanagar Telephone Nigam Limited |
| CITATION | 1995 AIR 2438, 1995 SCC (5) 139 |
| DATE OF THE JUDGEMENT | 3 August, 1995 |
| APPELLATE | Tata press Limited |
| RESPONDENT | Mahanagar Telephone Nigam Limited |
| BENCH/JUDGE | Kuldip Singh |
| STATUTES/CONSTITUTION INVOLVED | Indian Telegraph Act, 1885 Magic Remedies (Objectionable Advertisment) Act, 1957 News paper (Price and Page) Act, 1957 Constitution Of India |
| IMPORTANT SECTIONS INVOLVED | Constitution of India- Art. 19(1)(a), 19(2) |
ABSTRACT
In this case an appeal has arisen from the civil suit instituted before the Bombay by Mahanagar Telephone Nigam Limited and Union of India on the declaration that they are the only one who have the right to publish or print the list of telephone subscribers and it cannot be printed or published by any other without the permission of Telephone Nigam or Union of India. Further it was declared that the Tata Press Limited have no right whatsoever to print, publish and circulate the compilation called “Tata Press Yellow Pages”. The Act which restraining the Tatas, their agents and servants from publishing or circulating the “Tata Press Yellow Pages” as it violated the Indian Telegraph Act, 1885 and the Indian Telegraph Rules, 1951. The appeal was dismissed by the Division Bench of the High Court of Bombay also and so Tata Press Limited went to the Supreme Court . The Court held the publication by Tata Press Ltd. and MTNL application was rejected by the Court.
INTRODUCTION
Article 19 is one among the most important rights provided to the citizens by the Constitution of India. It deals with the concept of private liberty, a basic right in its one form or the opposite. Article 19 guarantees to the citizens with six fundamental rights like freedom of speech and expression, freedom of assembly, freedom to make Associations or Unions or Co-operative Societies, freedom of movement, freedom to reside and to settle and freedom of profession, occupation, trade or business. within the case of Tata Press Ltd. v Mahanagar Telephone Nigam Limited the perpose to freedom of speech and expression is extensively taken into account.
Earlier advertisement was regarded only as how to draw the attention of the customers so that they are persuaded to buy certain products and services. It only had a task to play in business and trade and was not regarded as a form of speech and expression. But today its role has significantly changed. It has become a way to spread information regarding the product that is aimed to be advertised. Public become aware and benefitted through the knowledge that the advertisements carry with themselves. Through advertisements the people also are made aware of their economic needs and sometimes social needs too. In the present case the Court held that commercial advertisement also comes under the ambit of freedom of speech and expression Article 19(1)(a) which can be restricted by Article 19(2) .
Tata Press has won the case. The Supreme Court has upheld its right to publish the increasingly popular Tata Press telephone book, the annual buyers’ guide for Bombay. Yet the identical judgement, delivered last fortnight, banned the foremost sought-after aspect of the yellow pages: lists of telephone subscribers classified according to their trade or profession.
All telephone book can, from now on, carry only paid advertisements. Single-line entries giving just the name, address and phone number of the subscriber will continue to be the monopoly of the directories brought out by the government-run telephone authorities.
More than its impact on the litigants’ business, the judgement has significant ramifications for the general public at large.The Court has declared that the proper to “commercial speech” or advertisement is part of the fundamental right to freedom of speech and expression guaranteed by Article 19(l)(a) of the Constitution. a personal agency like Tata Press is, therefore, entitled to bring out telephone book comprising advertisements.
FACTS OF THE CASE
This appeal has arisen from a lawsuit instituted before the Bombay by the Mahanagar Telephone Nigam Limited (the Nigam) and the Union of India for a declaration that they alone have the right to print/publish the list of telephone subscribers and that the same cannot be printed or published by any other person without express permission of the Nigam/Union of India. an extra declaration was sought that the Tata Press Limited (Tatas) have no right whatsoever to print, publish and circulate the compilation called “Tata Press Yellow Pages” (Tata- pages).
A final injunction restraining 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 therefore the Indian Telegraph Rules, 1951 (the rules) – was also sought from the Court. the town Civil Court, Bombay by its judgment dated August 7, 1993 dismissed the suit. First appeal filed by the Nigam and therefore 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, put aside the judgment of the trial court and decreed the suit. patent Appeal filed by the Tatas was dismissed by a Division Bench of the Bombay High Court by the impugned judgment dated September 8, 1994. This appeal, by way of special leave, is against the judgment of the Division Bench of the supreme court upholding the learned single judge.
“Tata Press yellow pages” comprising paid advertisements from businessmen, traders and professionals. We are, however, of the view that the appellants cannot publish any “list of telephone subscribers” without the permission of the telegraph authority. Rule 458 of the principles is mandatory and has to be complied with.
The appellant shall not publish within the “Tata Press yellow pages” any entries similar to those which are printed in the ‘white Pages’ of the “telephone directory” published by the Nigam under the Rules. We make it clear that the appellant cannot print/publish an entry containing only the phonephone number, the initials, the surname and therefore the address of the businessmen, trader or professional concerned[2].
Mahanagar Telephone Nigam may be a government company which is under the control of Government of India. It had a license under the Indian Telegraph Act to determine , maintain and control the telecommunication service within the territorial jurisdiction of the Union Territory of Delhi and therefore the Municipal Corporations of Bombay, New Bombay and Thane. MTNL wont to publish and distribute the telephone directory consisting of white pages .
It did the task itself till the year 1987. From the year 1987 it hired contractors to publish the directory. It allowed the contractors to earn revenue for themselves by the way of advertisements and publish the advertisements as “yellow pages” . Thus, the phone directory published by MTNL contained “white pages” which had the list of telephone subscribers and “yellow pages” which had advertisements obtained by the contractors to meet the expenditures and to earn revenue.
“Tata Press Yellow Pages” were published and distributed by Tata Press Ltd which contained paid advertisements procured from businessmen, professionals and traders. So, Mahanagar Telephone Nigam Limited and therefore, the Union of India filed a civil suit against Tata Press Limited contending that they solely has the right to print and publish the list of telephone subscribers under the Indian Telegraph Act and thus Tata Press Limited has no such right to print and publish the same[3].
ISSUES RAISED BEFORE THE COURT
- Whether the publication of yellow paper is telephone reference under the telegraph rules 1957 and Indian Telegraph Act, 1885?
- Whether the commercial advertising comes with the concept of “Freedom of Speech and expression” under Article 19(1)(a) of the Constitution of India?
- Whether Tata Press can be stoped from publishing and printing the “yellow pages”?
ARGUMENTS FROM THE APPELANT SIDE
- The counsel from the appellant argued that Tata Press Ltd. has the rights to publish and circulate the “Yellow Pages”.
- They also pointed out that “Commercial Advertisement” come under the scope of Article 19(1)(a) of Indian Constitution which provides freedom of speech and expression.
- They argued that the “yellow page” is not a directory but it is a consumer guide as herein the advertisements are paid and procured from businessmen, traders and professional.
ARGUMENTS FROM THE RESPONDENT SIDE
- The learned counsel for the respondent argued that MTNL could be a licensee under the Indian Telegraph Act and had a sole right to print, publish and distribute the subscriber list. Without the permission from MTNL Tata cannot print, publish and distribute the list of subscribers.
- They also argued that commercial advertising does not come beneath the scope of Freedom of speech and expression.
RELATED PROVISIONS
Constitution of India
Article 19(1)(a)-
(1)All citizens shall have the right
(a) to freedom of speech and expression[4]
Article 19(2)-
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence[5]
JUDGEMENT
The Hon’ble Supreme Court held that advertisement which comes under commercial speech forms a component of the freedom of speech and expression which is given under Article 19(1)(a) of the Constitution of India and it is subject to the reasonable restrictions mentioned in clause (2) of Article 19. Article 19(2) mentions that for the interest of sovereignty and integrity of the nation, its security, its friendly relations with other states, for maintaining public order, decency, morality, defamation, incitement of offence Article 19 of the citizens are often restrained.
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 government or any other authority. “Publication of advertisements” 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 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 advertisements” can be equated with a “list of telephone subscribers A “list” is a number of names having something in common written out systematically 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 subscriber 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 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 Government is empowered to regulate and check the commercial advertisements that are deceptive, unfair, untruthful and misleading in order that advertisements which have the power to spread information and awareness doesn’t disturb public order and peace.The Apex Court held that the govt. of India and Mahanagar Telephone Nigam Limited does not have the right to constrain the Tata Press Limited from publishing and distributing “Yellow Pages”. It held that through the advertisements and thereupon the information contained in it the public is getting benefitted.
The Court stated that since our country encompasses a democratic economy so there should be compulsorily free flow of commercial information so that our citizens can make an informed and rational decisions while choosing any product or services. But to have such informed and economical decisions the public should be educated by the information that is being disseminated through the advertisements. Also seeing the changes within the economy, the general public at large now has the right to receive the “Commercial Speech”. Without there being freedom of “Commercial Speech” the financial system that suitably works in a democracy will collapse and become paralysed.
“We, therefore, hold that the Nigam/union of India cannot restrain the appellant from publishing “Tata Press yellow pages” comprising paid advertisements from businessmen, traders and professionals. We are, however, 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 which are printed in the ‘white Pages’ of the “telephone directory” published 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 professional concerned.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”.
The Court also held that through Article 19(1)(a) the Indian Constitution doesn’t only guarantee its citizens the freedom of speech and expression but also gives them the right to listen, read and receive the said speech. The protection of Article 19(1)(a) can’t be denied to all the commercial advertisements merely on the basis that it has been issued by the businessmen. This view was also made in Hamdard Dawakhana v. Union of India[6] and therefore, the Indian Express Newspaper v. Union of India[7] Case. the proper that is guaranteed under Article 19(1)(a) cannot be made forbidden for anybody only because of the fact that by doing so there would be monopoly created in the favour of the Government. This right can only be restricted on the idea of the grounds that are given under Article 19(2) of the Constitution of India[8].
CONCLUSION
Supreme court in finally concluded that 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 comprising “Yellow Pages” attached to the telephone directory is not a public utility service. 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 government or any other authority. “Publication of advertisements,” 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 rule 458 and 459 of the Rules.
The said list would necessarily be restricted to the area serviced by the Nigam. On the other hand “Tata Press 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 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. “Publication of advertisements” being a non-utility service cannot come within the prohibition imposed by Rule 458 of the Rules.
[1] Author is 3rd semester student of Amity Law School, Lucknow.
[2] India Today, https://www.indiatoday.in/magazine/nation/story/19950831-mtnl-vs-tata-press-sc-identifies-advertising-as-part-of-right-to-freedom-of-speech-807677-1995-08-31 (Last Visited on Jul.30, 2022).
[3] Indian Kanoon, https://indiankanoon.org/doc/752455/ (Last Visited on Jul.30,2022).
[4] The Constitution of India, 1950, Article 19(1)(a).
[5] The contitution of India , 1950, Article 19(2).
[6] Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
[7] Express Newspaper v. union of India, 1986 AIR 515, 1985 SCR (2) 287.
[8] Indian Kanoon, https://indiankanoon.org/doc/752455/ (Last Visited on Jul. 30, 2022).
