Prohibiting Outdoor Advertisement On Private Properties Is Unconstitutional: Karnataka HC Partially Strikes Down BBMP Advertisement Bye-Laws
In a writ petition filed under Article 226 of the Constitution praying to declare the Bruhat Bengaluru Mahanagara Palike Outdoor Signage And Public Messaging Bye-Laws, 2018 unconstitutional, under article 14 and 19(1)(a) & (g), on discriminating against the petitioners by prohibiting outdoor advertisement on private properties, the Karnataka High Court struck down the Clause 7.1.1 of the Bylaws, 2018.
The Bench of Justice Hemant Chandangoudar found clause 7.1.1 of By-Laws 2018 impinging the fundamental right guaranteed under Articles 14 and 19(1)(a) and (g) of the Constitution.
Finding no logic with said clause, the judge held "that permitting outdoor advertisements other than outdoor advertisements on private residential properties in the absence of any logic or rationale is violative of Article 14 of the Constitution of India. The impugned clause of the bye-laws permitted all other types of outdoor advertisements except outdoor advertisements on private residential properties.
The Court upon reading the said by-laws, 2018 held that there is no logic or rationale in prohibiting outdoor advertisements on private residential properties when outdoor advertisements are permitted on infrastructures that are provided by the BBMP to the people of Bengaluru under the PPP project and other places. The High Court while applying the principle of severability upheld the other impugned clauses of the by-laws and struck down clause 7.1.1 for being redundant.
Before the Court was a batch of petitions preferred by a body of advertising agencies with about 200 members and a company incorporated under the Companies Act engaged in the business of advertising and publicity, both registered under the Bengaluru Mahanagara Palike Advertisement Byelaws, 2006 for erecting and displaying of commercial hoardings.
In compliance with an order passed in a public interest litigation, the respondent corporation enacted by-laws, 2018 which prohibited the putting up of any flexes, banners, buntings, illegal advertisement board wall writing, posters, hoardings, gantries flex paintings, and all other types of advertisements for one year stating that they affect the city's aesthetic beauty, caused public nuisance and are responsible for road accidents, etc. The Petitioners aggrieved by the prohibition to carry out the outdoor advertisement on private properties approached the High Court.
Advocate Ravivarma Kumar and Advocate B V Shankarnarayana Rao appeared for the petitioners while Advocate Dhyan Chinnappa appeared for the respondent.
The Court in its judgment while deliberating upon the issues raised answered them in the following manner:
Whether an Advertisement is a Commerical Speech, Enjoying Protection under Article 19 (1) (a):
The Court to answer this issue relied on the Supreme Court judgment of Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139 and various other precedents.
The Supreme Court in these above-mentioned judgments had categorically held that in a democratic economy, the free flow of commercial information is indispensable. 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 handicapped without there being freedom of “commercial speech”
Following this, the High Court held that "commercial speech is a part of the right guaranteed under Article 19(1)(a) and right to carry on business which is a fundamental right guaranteed under Article 19(1)(g) can be curtailed only on the grounds enumerated under Article 19(2) and (6) of the Constitution of India, and any other restrictions imposed is violative of Article 19(1)(a) and Article 19(1)(g) of the Constitution of India"
The High Court in its judgment further clarified that hoardings in private places can be regulated by licensing provision however there cannot be a total and complete prohibition on outdoor advertisement on private properties.
Maintainability of Writ Petitions:
The Court found that it is settled law that a juristic person cannot maintain a petition under Article 226 of the Constitution of India for enforcement of fundamental right guaranteed under Article 19, since citizens alone can claim the protection of the fundamental rights but as before them is an association whose members are citizens of the country and even the company is represented by its manager who is a citizen of this country, the petition was found to be maintainable.
Moreover, the judge found clause 7.1.1 of by-laws violative of Article 14 and as the Article specifies that the State shall not deny to any person equality before the law or the equal protection of law within the territory of India. On such a basis, the petition was maintainable.
Whether by-laws Prohibiting Outdoor Advertisement are Violative of Articles 14 and 19 (1) (a) & (g):
The Court found that no materials by the respondent have been placed on outdoor advertisements on private residential properties causing distractions, thus endangering traffic safety and harmful to the environment. Further that there is nothing on record stating outdoor commercial advertisements would alone affect the local character and environment, protect public investment in and the character of public right of ways and also the aesthetic beauty of Bengaluru City.
The Court observed, "the impugned Byelaws permits all other types of outdoor advertisements except outdoor advertisements on private residential properties. There is no logic or rationale in prohibiting outdoor advertisements on private residential properties, when outdoor advertisements are permitted on infrastructures which are provided by the BBMP to the people of Bengaluru under the PPP project"
The Court found the clause restricting outdoor advertisements on private properties violative of Article 14 and suggested that BBMP can always impose such restrictions to regulate the outdoor advertisement on private properties, which restrictions have been imposed on other outdoor advertisements and not impose a complete ban.
Erection of Hoardings on Public Right of Way: On this issue, before them, the Court held that "Imposition of prohibition to erect hoardings on public right of way cannot be said to be discriminatory as it eases out the movement of pedestrians and vehicles without any visual distractions"
Whether Striking Down clause 7.1.1 will Invalidate Entire By-Laws: Before the Court raised another contention to ponder whether striking down of a single clause will invalidate entire 2018 by-laws, to which the Court relied on the case of Firm A.T.B. Mehtab Majid and Co and R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628 and held that on applying the doctrine of severability, only clause 7.1.1 is severed from the bye-law and since, there is no challenge to each of the Clauses of the Byelaws in these petitions nor they are held to be arbitrary and discriminatory. Hence, the striking down of clause 7.1.1 of the bye-laws, 2018 will not invalidate other provisions of the bye-law.
Also, the Court in its judgment suggested several programs to curb/prevent the erection of unauthorized hoardings in the city of Bengaluru.
Therefore allowing the petition in part, the Court struck down Clause 7.1.1 of the Bylaws, 2018 as arbitrary and unconstitutional.
Case Title: In and Out Advertising Pvt. Ltd. & Ors. v. The State of Karnataka & Ors.