Hamdard Dawakhana v Union of India

The case of Hamdard Dawakhana v Union of India (1959) is a landmark decision that examined the scope of freedom of speech and expression under Article 19(1)(a) of the Indian Constitution, particularly in relation to commercial speech. The case arose due to the restrictions imposed by the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, which prohibited advertisements of certain drugs claiming to have magical or curative properties. 

The petitioner challenged the constitutionality of the Act, arguing that it violated their fundamental rights under Article 19(1)(a), 19(1)(f), and 19(1)(g). The Supreme Court of India had to determine whether the Act imposed an unreasonable restriction on free speech, particularly in the domain of commercial advertisements.

Facts of Hamdard Dawakhana v Union of India

The petitioners, Hamdard Dawakhana, a well-known manufacturer of Unani medicines, contested the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 under Article 32 of the Constitution. Their argument was that the Act’s restrictions on advertising their products, which were widely recognised under the Unani system of medicine, violated their fundamental rights.

• The petitioners received a notice on 4 December 1958 from the Drugs Controller stating that their advertisements were in violation of Section 3 of the Act.
• The Controller ordered a halt to the sale of forty products that were mentioned in the petition and demanded the return of products sent to Bombay and other states.
• The petitioners argued that their products had traditional recognition, and the Act’s prohibition on their advertisement interfered with their right to trade and free speech.

The respondents (Union of India) countered that the Act was necessary to prevent the public from self-medicating and causing harm due to exaggerated and misleading advertisements. They claimed that such advertisements misled people into believing in false cures, encouraging self-medication without professional consultation.

Legal Issues Raised

The key issues in Hamdard Dawakhana versus Union of India were:

1. Is the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 unconstitutional?
2. Do the reasonable restrictions under Article 19(2) apply to advertisements?
3. Does the Act impose unjustified and excessive limitations on constitutional rights?
4. Does the Act grant the executive unchecked power to regulate advertising?

Arguments of the Petitioner

The petitioners, Hamdard Dawakhana, raised the following key contentions:

• Violation of Fundamental Rights: The Act infringed their right to freedom of speech and expression under Article 19(1)(a), their right to practise any profession or carry on trade or business under Article 19(1)(g), and their right to acquire, hold, and dispose of property under Article 19(1)(f).
• Discrimination & Unjustified Restrictions: The Act was discriminatory as it targeted certain types of advertisements while allowing others, thereby violating Article 14 (right to equality).
• Recognised Medicinal Value: The medicines in question used Unani nomenclature, which had been acknowledged globally for centuries. The Act’s prohibition on their advertisement unfairly hindered their business.
• Lack of Justification: The Act did not establish a direct and immediate threat to public health, making its restrictions unreasonable

Arguments of the Respondent

The Union of India argued in defence of the Act, stating:

• Need for Public Protection: The government had a duty to protect citizens from misleading claims. The petitioners’ advertisements encouraged self-medication, which had serious public health risks.
• Advertisements Are Not Pure Speech: The primary objective of commercial advertisements is trade and commerce, not the propagation of ideas, and therefore, they do not enjoy absolute protection under Article 19(1)(a).
• Prevention of Exploitation: The law sought to curb the exploitation of vulnerable individuals by preventing misleading drug advertisements.
• Reasonable Restrictions Apply: The right to free speech is not absolute and can be curtailed under Article 19(2) in the interest of public health and safety.

Hamdard Dawakhana v Union of India Judgement

On 18 December 1959, the Supreme Court of India delivered its verdict in Hamdard Dawakhana vs Union of India. The Court held that commercial advertisements do not enjoy full constitutional protection under Article 19(1)(a).

Key Findings of the Supreme Court

1. Advertisements as Speech: The Court agreed that an advertisement is a form of speech, but not all forms of speech fall within the essential concept of free expression.
2. Commercial Speech is Limited: The Court ruled that advertisements aimed solely at promoting trade and commerce are not protected speech. The propagation of ideas is essential to free speech, but purely commercial content does not serve this function.
3. Prevention of Harm: The Court acknowledged that misleading advertisements could cause harm by encouraging people to use unverified remedies, justifying government regulation.
4. Delegation of Power: The delegation of power under the Act was considered too broad and was struck down as “uncontrolled and uncanalised”, exceeding the bounds of permissible delegation.

Based on these findings, the Court upheld the constitutionality of the Act and ruled that the restriction on misleading advertisements was valid.

Conclusion

The ruling in Hamdard Dawakhana v Union of India reinforced the idea that not all forms of speech are protected equally under the Constitution. By distinguishing between political/social speech and commercial advertisements, the judgement established an important legal precedent. It upheld the government’s power to regulate misleading advertisements, ensuring public health and welfare were prioritised over unfettered commercial speech.

The Hamdard Dawakhana versus Union of India decision remains a cornerstone in Indian constitutional law, shaping the regulatory framework for advertising, healthcare marketing, and consumer protection. It highlights the judiciary’s role in balancing fundamental rights with societal interests, ensuring that freedom of speech does not become a tool for commercial exploitation.