Advertisement of a commercial nature cannot fall within the concept of Article 19(1)(a)

An interesting decision of the Apex Court I am presenting in brief:

In the case of Hamdard Dawakhana v. Union of India certain Sections of The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (21 of 1954), ss. 2(a), 3(d), 8 and 14(c) were challenged by the petitioner arguing that they were violative of fundamental rights like, freedom of speech, etc.

The allegation of the petitioners was that various actions had been taken against them by the respond which violated their fundamental rights under Art. 19(1)(a) and 19(1)(f) & (g). They also challenged the Act because it contrvened the provisions of Art. 14 and Arts. 21 and 31

The Respondents ( Drug Control Department) had objected by stating that advertisements of drugs for self-medication cannot be said to violate fundamental rights, like, freedom of speech.

Various citations were produced before the Court from the Advocates of both parties.

The Supreme Court observed,

When an enactment is challenged on the ground of violation of fundamental rights it is necessary to ascertain its true nature and character, i.e., its subject matter, the area in which it is intended to operate, its purport and intent. In order to do so it is legitimate to take into consideration all the factors such as the history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief intended to be suppressed, the remedy proposed by the legislature and the true reason for the remedy. Initially, there is a presumption in favour of the constitutionality of an enactment.

On examining the history of the legislation, the surrounding circumstances and the scheme of the Act it was clear that the object of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954, was the prevention of self- medication and self-treatment by prohibiting instruments which may be used to advocate the same or which tended to spread the evil. Its object was not merely the stopping of advertisements offending against morality and decency. 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 is only when an advertisement is concerned with the expression or propagation of ideas that it can be said to relate to freedom of speech. But it cannot be said that the right to publish and distribute commercial advertisements advertising an individual's personal business is a part of the freedom of speech guaranteed by the Constitution. The provisions of the Act which prohibited advertisements commending the efficacy, value and importance in the treatment of particular diseases of certain drugs and medicines did not fall under Art. 19(1)(a) of the Constitution. The scope and object of the Act its true nature and character was not interference with the right of freedom of speech but it dealt with trade and business.

The petitioners prayed for a declaration that the Act and the Rules made there under were ultra vires and void as violative of Part III of the Constitution and for the issuing of a writ of Mandamus and Prohibition and for quashing the proceedings and the notices issued by the various authorities-the respondents.

In their counter affidavit the respondents submitted that the method and manner of advertisement of drugs by the petitioners and others clearly indicated the necessity of having an Act like the impugned Act and its rigorous enforcement. The allegations in regard to discrimination and impairment of fundamental rights under Art. 19(1)(a), (f) & (g) and any infringement of Arts. 21 and 31 were denied and it was stated :-

"The restriction is about the advertisement to the people in general. I say that the main object and purpose of the Act is to prevent people from self medicating with regard to various serious diseases. Self-medication in respect of diseases of serious nature mentioned in the Act and the Rules has a deleterious effect on the health of the community and is likely to affect the well-being of the people. Having thus found that some medicines have tendency to induce people to resort to self-medication by reason of elated advertisements, it was thought necessary in the interest of public health that the puffing up of the advertisements is put to a complete check and that the manufacturers are compelled to route their products through recognised sources so that the products of these manufacturer could be put to valid and proper test and consideration by expert agencies."

It was also pleaded that the advertisements were of an objectionable character and taking into consideration the mode and method of advertising conducted by the petitioners the implementation of the provisions of the impugned Act was justified.

The Supreme Court relaying on earlier decisions reproduced and observed,

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 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, advertisement 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 advertisements advertising an individual's personal business is a part of freedom of speech guaranteed by the Constitution.

Advertisement takes the same attributes as the object it seeks to promote or bring to the notice of the public 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).

In the present case therefore (1) the advertisements affected by the Act do not fall within the words freedom of speech within Art. 19(1)(a); (2) the scope and object of the Act its true nature and character is not interference with the right of freedom of speech but it deals with trade or business; and (3) there is no direct abridgement of the right of free speech and a mere incidental interference with such right would no alter the character of the law.

It is not the form or incidental infringement that determines the constitutionality of a statute in reference to the rights guaranteed in Art. 19(1), but the reality and substance. The Act read as a whole does not merely prohibit advertisements relating to drugs and medicines connected with diseases expressly mentioned in s.3 of the Act but they cover all advertisements which are objectionable or unethical and are used to promote self-medication or self- treatment. This is the content of the Act. Viewed in this way, it does not select any of the elements or attributes of freedom of speech falling within Art. 19(1)(a) of the Constitution.

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