The hearing before the Hon’ble Karnatka High Court continued on Day 5 as the counsel for the Tobacco Institute of India cited decisions of the Indian and the US Supreme Courts, in support of the existence of a right to commercial speech within the ambit of Article 19(1)(a). The arguments on this day, focused mainly on proving that the petitioner’s right to commercial speech is being curtailed by the impugned rules notified by the Government which excessively restrict the ability to advertise on the packaging of tobacco products.
The counsel briefly explained the historical basis through which commercial speech came to be recognised within the constitutional guarantee of Article 19(1)(a). He at first cited Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another v. Union of India (1960 AIR 554). This case quoted with approval, the position of law laid down in the US Supreme Court judgment of Valentine v Chrestensen (316 US 52), to state that commercial speech does not come within the right to free speech, especially when there is an element of trade or business involved. The counsel said that though this judgment did not recognise commercial speech, it did so only in context of the narrow factual matrix of that case, which concerned the regulation of advertisements of certain drugs and magical remedies that could cause people to conduct harmful self-medication.
The petitioner then went on to state how the position of law in Hamdard Dawakhana was modified by the Supreme Court in its application to a different and broader scenario in the cases of Indian Express Newspapers v. Union of India & Ors. (1986 AIR 515) and Tata Press Limited v. MTNL (1995 AIR 2438). These two cases reflected the changed position of law on commercial speech, consideration having been given also to the United States judgments of New York Times v. Sullivan 376 U.S. 254 (1964), and West Virginia Board of Education v. Barnette 319 U.S. 624 (1943), wherein it was held that commercial speech constitutes a part of the First Amendment, and that the free flow on information through advertisements should not in any way be restricted. It was thus argued that the two Indian cases recognised a right to commercial speech under Article 19(1)(a).
The Counsel emphasized that this right to commercial speech is available not only under Article 19(1)(a), but also available to the manufacturers and traders, in the interests of their trade, business or occupation, under Article 19(1)(g).
The Counsel, at this juncture, was asked by the court if printing of the brand name of the tobacco product would come within the definition of “advertisement” in the COTPA. In response to this, the Counsel said that the government is indirectly restricting the tobacco manufacturers from the only form of advertising that is allowed by the impugned enactment and rules, by reducing the available space on the packaging.
The Court then asked the Counsel as to how he intends to apply any test as to the reasonableness of restrictions under Article 19(2), to the impugned enactment and rules, which restrict the printing of any misleading claims or matter in derogation of the specified health warnings. The court observed that Article 19(1)(a) or Article 19(2) does not need to carry the restriction that one does not have the right to say false things. Thus is inherent as Article 19(1)(a) does not embody falsehood as a right in the first place.
The counsel responded by stating that the Right available under Article 19(1)(g) cannot be used as the cost of the right to free speech under Article 19(1)(a). The Counsel relied upon Union of India and Ors v Motion Pictures Association and Ors. [1999 (3) SCR 875], and argued that compelled speech is equally a violation of free speech except as restricted under 19(2). It will depend on the nature of the information or speech and whether it helps a person come to a reasoned decision. In the case of cigarette packets, they must carry a statutory warning but the government cannot mandate 85% health warnings on both sides of the product package. It leaves no space for the manufacturer’s commercial speech.
The Court pointed out that the judgment of Tata Press upheld commercial speech in the scenario wherein an advertisement gives information to the public, which is “of such more importance to the general public, than to the advertiser, who may have purely trade considerations.” The Court hence, asked the Counsel on the scope of the State’s own right to speech in mandating health warnings. The example of the State’s mandating a “Schedule H” warning on prescription drugs, in the interest of the general public, was given in this regard. The Court also said that if the challenge was to be based on the touchstone of only the 8 categories under Article 19(2), all the impugned rules would have to be struck down, and thus, there would be no prescription in regard to the injury to public health.
The Counsel answered that the State can advertise and speak, but not through the property of a tobacco manufacturer. And if it does so, it has to do so, in a reasonably restrictive manner under Article 19(2). The Learned judge suggested that a welfare State can only restrict rights to speech in limited conditions, such as to protect its people and to bring in pictorial warnings for the benefit of public health. The counsellor, however, argued that mandating these warnings through the medium of the manufacturer’s product, and not through the State’s own property, amounts to excessive restraint, and hence, forced speech.
The counsel continued to compare the application of US law on free speech through the First Amendment rights, to the position of law in India. The case of Lorillard Tobacco Company v. Reilly [533 US 525 (2001)] was relied on to show that a government interest can be asserted by a way of regulation only if it is not much more excessive than it is necessary. Drawing from this, the counsel asked why the government unilaterally went ahead to prescribe up to 85% specified health warnings from the earlier 40% on one side.
The Counsel then elaborated that not only must the contents of the State’s speech or regulations be truthful, proportionate and reasonable, but the rules on the specified health warnings, should suffice with being legible, prominent and conspicuous. Thus, the counsel emphasised that a restriction to Article 19(1)(g) must be imposed in the least restrictive manner and that a restriction to Article 19(1)(a) should be tailored as narrowly as is required to achieve the end to a stated means. In this case, this would mean, that if the warnings are legible, prominent and conspicuous, they are a sufficient means to achieve the end purpose of providing relevant and not excessive information on health risks (Such as “Smoking causes throat cancer”).
Towards the end of this day, arguments were also made to the effect that, while the 2014 Amendments seek to deter children from taking up smoking, the health warnings are still unreasonably restrictive of the commercial speech sought to be entered into by the trader with the adult population of consumers.