reported in/ published in judis.nic.in/supremecourt/filename=10896
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PETITIONER:
THE SECRETARY, MINISTRY OF INFORMATION & BROADCASTING,
Vs.
RESPONDENT:
CRICKET ASSOCIATION OF BENGAL & ANR.
DATE OF JUDGMENT09/02/1995
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
MOHAN, S. (J)
JEEVAN REDDY, B.P. (J)
CITATION:
1995 AIR 1236 1995 SCC (2) 161
JT 1995 (2) 110 1995 SCALE (1)539
ACT:
HEADNOTE:
JUDGMENT:
1. Leave granted.
2. It will be convenient to answer the questions of law
that arise in the present case, before we advert to the
factual controversy between the parties. The questions of
law are:
[1] Has an organiser or producer of any event a right to get
the event telecast through an agency of his choice whether
national or foreign?
[2] Has such organiser a choice of the agency of
telecasting, particularly when the exercise of his right,
does not make demand on any of the frequencies owned,
commanded or controlled by the Government or the Government
agencies like the Videsh Sanchar Nigam Limited [VSNL] or
Doordarshan [DD]?
[3] Can such an organiser be prevented from creating the
terrestrial signal and denied the facility of merely
uplinking the terrestrial signal to the satellite owned by
another agency whether foreign or national?
[4] What, if any, are the conditions which can be imposed by
the Government department which in the present case is the
Ministry of Information and Broadcasting [MIB] for [a]
creating terrestrial signal of the event and [b] granting
facilities of uplinking to a satellite not owned or controlled by the Government or its agencies?
3. On answers to these questions depend the answers to the
incidental questions such as [i] whether the Government or
the Government agencies like DD in the present case, have a
monopoly of creating terrestrial signals and of telecasting
them or refusing to telecast them, [ii] whether the
Government or Government agencies like DD can claim to be
the host broadcaster for all events whether produced or
organised by it or by anybody else in the country and can
insist upon the organiser or the agency for telecasting engaged by him, to take the signal only from the Government or
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Government agency and telecast it only with its permission
or
4. To appreciate the thrust of the above questions and the
answers to them, it is necessary first to have a proper
understanding of what ’telecasting’ means and what its legal
dimensions and consequences are. Telecasting is a system of
communication either audio or visual or both. We are
concerned in the present case with audio-visual
telecommunication. The first stage in telecasting is to
generate the audio-visual signals of the events or of the
information which is sought to be communicated. When the
event to be telecast takes place on the earth, necessarily
the signal is generated on the earth by the
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requisite electronic mechanism such as the audio-visual
recorder. This stage may be described as the recording
stage. The events may be spontaneous, accidental, natural
or organised. The spontaneous, accidental and natural
events are by their nature uncontrollable. But the
organised events can be controlled by the law of the land.
In our country, since the Organisation of an event is an
aspect of the fundamental right to freedom of speech and
expression protected by Article 19 [1] (a), the law can be
made to control the Organisation of such events only for the
purposes of imposing reasonable restrictions in the interest
of the sovereignty and integrity of the country, 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
as laid down under Article 19 [2] of the Constitution. Although, therefore, it is not possible to make law for
prohibiting the recording of spontaneous, accidental or
natural events, it is possible for the reasons mentioned in
Article 19 [2], to restrict their telecasting. As regards
the organised events, a law can be made for restricting or
prohibiting the Organisation of the event itself, and also
for telecasting it, on the same grounds as are mentioned in
Article 19 [2]. There, cannot, however, be restrictions on
producing and recording the event on grounds not permitted
by Article 19 [2]. It, therefore, follows that the
Organisation or production of an event and its recording
cannot be prevented except by law permitted by Article 19
[2]. For the same reasons, the publication or communication
of the recorded event through the mode of cassettes cannot
be restricted or prevented except under such law. All those
who have got the apparatus of video cassette recorder [VCR]
and the television screen can, therefore, view and listen to
such recorded event [hereinafter referred to, for the sake
of convenience, as ’viewers’]. In this process, there is no
demand on any frequency or channel since there is no livetelecast of the event. The only additional restriction on
telecasting or live-telecasting of such event will be the
lack of availability of the frequency or channel.
5. Since in the present case, what is involved is the
right to live-telecast the event, viz., the cricket matches
organised by the Cricket Association of Bengal, it is
necessary to understand the various issues involved in live
telecasting. It may be made clear at the outset, that there
may as well be a file telecast [i.e., telecasting of the
events which are already recorded by the cassette]. The
issues involved in file telecasting will also be more or
less the same and therefore, that subject is not dealt with
separately. Telecasting live or file necessarily involves
the use of a frequency or a channel.
6. The telecasting is of three types, [a] terrestrial, [b]http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 109
cable and [c] satellite. In the first case, the signal is
generated by the camera stationed at the spot of the event,-
and the signal is then sent to the earthly telecasting
station such as the T.V. Centre which in turn relays it
through its own frequencies to all the viewers who have
T.V.screens/sets. In the second case, viz., cable
telecasting, the cable operator receives the signals from
the satellite by means of the parabolic dish antenna and
relays them to all those T.V. screens which are linked to
his cable. He also relays the recorded file programmes or
cassettes through the cable to the cable-linked viewers. In
this case, there is no restriction on
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his receiving the signals from any satellite to which his
antenna is adjusted. There is no demand made by him on any
frequency or channel owned or controlled by the national
government or governmental agencies. The cable operator can
show any event occurring in any part of the country or the
world live through the frequencies if his dish antenna can
receive the same. The only limitation from which the cable
T.V. suffers is that the programmes relayed by it can be
received only by those viewers who are linked to the dish
antenna concerned. The last type, viz., satellite T.V.
operation involves the use of a frequency generated, owned
or controlled by the national Government or the Governmental
agencies, or those generated, owned and controlled by other
agencies. It is necessary to bear in mind the distinction
between the frequencies generated, owned and controlled by
the Government or Governmental agency and those generated
and owned by the other agencies. This is so because
generally, as in the present case, one of the contentions
against the right to access to telecasting is that there are
a limited number of frequencies and hence there is the need
to utilise the limited resources for the benefit of all
sections of the society and to promote all social interests
by giving them priority as determined by some central
authority. It follows, therefore, that where the resources
are unlimited or the right to telecast need not suffer for
want of a frequency, objection on the said ground would be
misplaced. It may be stated here that in the present case,
the contention of the MIB and DD against the right to
telecast claimed by the Cricket Association of Bengal
[CAB]/Board of Control for Cricket in India [BCCI] was
raised only on the ground of the limitation of frequencies,
ignoring the fact that the CAB/BCCI had not made demand on
any of the frequencies generated or owned by the MIB/DD. It
desired to telecast the cricket matches organised by it
through a frequency not owned or controlled by the
Government but owned by some other agency. The only
permission that the CAB/ BCCI sought was to uplink to the
foreign satellite the signals created by its own cameras and
the earth station or the cameras and the earth station of
its agency to a foreign satellite. This permission was
sought by the CAB/BCCI from VSNL which is the Government
agency controlling the frequencies. The permission again
cannot be refused except under law made in pursuance of the
provisions of Article 19 [2] of the Constitution. Hence, as
stated above, one of the important questions to be answered
in the present case is whether the permission to uplink to
the foreign satellite, the signal created by the CAB/BCCI
either by itself or through its agency can be refused except
on the ground stated in the law made under Article 19 [2].
7. This takes us to the content of the fundamental right
to the freedom of speech and expression guaranteed by
Article 19 [1] (a) and the implications of the restrictionshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 109
permitted to be imposed on the said right, by Article 19
[2]. We will first deal with the decisions of this Court
where the dimensions of the right are delineated.
8. In Romesh Thappar v. The State of Madras [1950 SCR 594]
the facts were that the Provincial Government in exercise of
its powers under Section 9 [1-A] of Madras Maintenance of
Public Order Act, 1949, by an order imposed a ban upon the
entry and circulation of the petitioner’s journal ’Cross
Roads’. The said order stated that it was being passed for
the pur-
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pose of securing the public safety and the maintenance of
public order. The petitioner approached this Court under
Article 32 of the Constitution claiming that the order
contravened the petitioner’s fundamental right to freedom of
speech and expression. He also challenged the validity of
Section 9 [1-A] of the impugned Act. The majority of the
Court held that the freedom of speech and expression
includes freedom of propagation of ideas and that freedom is
ensured by the freedom of circulation. In support of this
view, the Court referred to two decisions of the U.S. Supreme Court viz., [1] Exparte Jackson [96 US 727] and [ii]
Lovell v. City of Griffin [303 US 444] and quoted with
approval the following passage therefrom: "Liberty of
circulation is as essential to that freedom as the liberty
of publication. Indeed, without circulation the publication
would be of little value". Section 9 [1-A] of the impugned
Act authorised the Provincial Government, "for the purpose
of securing the public safety or the maintenance of public
order, to prohibit or regulate the entry into or the
circulation, sale or distribution in the Province of Madras
or any part thereof or any document or class of documents".
The question that the Court had to answer was whether the
impugned Act insofar as it contained the aforesaid provision
was a law relating to a matter which undermined the security
of, or tended to overthrow the State. The Court held that
"public order" is an expression of wide connotation and
signifies that state of tranquility which prevails among the
members of a political society as a result of the internal
regulations enforced by the Government which they have
established. The Act was passed by the Provincial Legislature under Section 100 of the Government of India Act,
1935, read with Entry I of List II of the Seventh Scheduled
to that Act. That Entry, among others, comprised "public
order" which was different from "public safety" on which
subject the Provincial Legislature was not competent to make
a law. The Court distinguished between "public order" and
"public safety" and held that public safety was a part of
the wider concept of public order and if it was intended to
signify any matter distinguished from and outside the
content of the expression "public order", it would not have
been competent for the Madras Legislature to enact the
provision so far as it related to public safety. "Public
safety" ordinarily means security of the public or their
freedom from danger. In that sense, anything which tends to
prevent danger to public health may also be regarded as securing public safety. The meaning of the expression must,
however, vary according to the context. The Court then
rejected the argument that the securing of the public safety
or maintenance of public order would include the security of
the State which was covered by Article 19 [2] and held that
where a law purports to authorise the imposition of
restrictions on a fundamental right in language wide enough
to cover restrictions both within and without the limits of
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such right, it is not possible to uphold it even insofar as
it may be applied within the constitutional limits as it is
not severable. So long as the possibility of its being
applied for purposes not sanctioned by the Constitution
cannot be ruled out, it may be held to be wholly
unconstitutional and void. In other words, clause [2] of
Article 19 having allowed the imposition of restrictions on
the freedom of speech and expression only in cases where
danger to the State is involved, an enactment which is
capable of being
126
applied to cases where no such danger could arise, cannot be
held to be constitutional and valid to any extent.
9. The above view taken by this Court was reiterated in
Brij Bhushan & Anr. v. The State of Delhi [1950 SCR 6051
where Section 7 [1] (c) of the East Punjab Public Safety
Act, 1949 as extended to the Province of Delhi, providing
that the Provincial Government or any authority authorised
by it in this behalf, if satisfied that such action was
necessary for preventing or combating any activity
prejudicial to the public safety or the maintenance of
public order, may pass an order that any matter relating to
a particular subject -or class of subjects shall before
publication be submitted for scrutiny, was held as unconstitutional and void. The majority held that the said
provision was violative of Article 19 [1] [a] since it was
not a law relating to a matter which undermined the security
of, or tended to overthrow the State within the meaning of
the then saving provision contained in Article 19 [2]. The
Court further unanimously held that the imposition of precensorship of a journal was a restriction on the liberty of
the press which was an essential part of the right to
freedom of speech and expression declared by article 19
[1](a).
10. In Hamdard Dawakhana [Wakf] Lal Kuan, Delhi & Anr. v.
Union of India & Ors. [(1960) 2 SCR 671], the Court held
that the object of the Drugs and Magic Remedies
[Objectionable Advertisements] 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. The Court further held that 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 Article 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
provisions of the Act were in the interest of the general
public and placed reasonable restrictions on the trade and
business of the petitioner and were saved by Article 19 [6].
The Court further held that the first part of Section 8 of
the impugned Act which empowered any person authorised by
the State Government to seize and detain any document
article or thing which such person had reason to believe,http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 109
contained any advertisement contravening the provisions of
the Act imposed an unreasonable restriction on the
fundamental rights of the petitioner and was unconstitutional. According to the Court, the said operation of
Section 8 went far beyond the purposes for which the Act was
enacted and failed to provide proper safeguards in regard to
the exercise of the powers of seizure and detention as had
been provided by the legislature in other statutes.
However, if this operation was ex-
127
cised from the section the remaining portion would be
unintelligible and could not be upheld.
11. In Sakal Papers [P] Ltd. & Ors.. v. The Union of India
[(1962)] 3 SCR 842] what fell for consideration was the
Newspaper [Price and age] Act, 1956 which empowered the
Central Government to regulate the prices of newspapers in
relation to their pages and size and also to regulate the
allocation of space for advertising matters and the Central
Government order made under the said Act, viz., the Daily
Newspaper [Price and Page] Order, 1960 which fixed the
maximum number of pages that might be published by the
newspaper according to the price charged and prescribing the
nature of supplements that could be issued. The Court held
that the Act and the Order were void being violative of
Article 19 [1] (a) of the Constitution. They were also not
saved by Article 19 [2]. The Court asserted that the freedom of speech and expression guaranteed by Article 19 [1]
(a) included the freedom of the press. For propagating his
ideas a citizen had the right to publish them, to
disseminate them and to circulate them, either by word or
mouth or by writing. The right extended not merely to the
matter which he was entitled to circulate but also to the
volume of circulation. Although the impugned Act and the
Order placed restraints on the volume of circulation, their
very object was directed against circulation. Thus both
interfered with the freedom of speech and expression. The
Court held that Article 19 [2] did not permit the State to
abridge the said right in the interest of general public.
The Court also held that the State could not make a law
which directly restricted one guaranteed freedom for
securing the better enjoyment of another freedom. Freedom
of speech could not be restricted for the purpose of regulating the commercial aspect of the activities of
newspapers. In this connection, the following observations
of the Court are relevant:
"Its object thus is to regulate something
which, as already stated, is directly related
to the circulation of a newspaper. Since
circulation of a newspaper is a part of the
right of freedom of speech the Act must be
regarded as one directed against the freedom
of speech. It has selected the fact or thing
which is an essential and basic attribute of
the conception of the freedom of speech, viz.,
the right to circulate one’s views to all whom
one can reach or care to reach for the
imposition of a restriction. It seeks to
achieve its object of enabling what are termed
the smaller newspapers to secure larger cir-
culation by provisions which without disguise
are aimed at restricting the circulation of
what are termed the larger papers with better
financial strength. The impugned law far from
being one, which merely interferes with the
right of freedom of speech incidentally, doeshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 109
so directly though it seeks to achieve the end
by purporting to regulate the business aspect
of a newspaper. Such a course is not
permissible and the courts must be ever
vigilant in guarding perhaps the most precious
of all the freedoms guaranteed by our
Constitution. The reason for this is obvious.
The freedom of speech and expression of
opinion is of paramount importance under a
democratic Constitution which envisages
changes in the composition of legislatures and
governments and must be preserved. No doubt,
the law in question was made upon the rec-
ommendation of the Press Commission but since
its object is to affect directly the right of
circulation of newspapers which would
necessarily undermine their power to influence
public opinion it cannot but
128
be regarded as a dangerous weapon which is
capable of being used against democracy
itself.
x x x x x x
The legitimacy of the result intended to be
achieved does not necessarily imply that every
means to achieve it is permissible; for even
if the end is desirable and permissible, the
means employed must not transgress the limits
laid down by the Constitution, if they
directly impinge on any of the fundamental
rights guaranteed by the Constitution it is no
answer when the constitutionality of the
measure is challenged that apart from the
fundamental right infringed the provision is
otherwise legal.
Finally it was said that one of its objects is
to give some kind of protection to small or
newly started newspapers and, therefore, the
Act is good. Such an object may be desirable
but for attaining it the State cannot make
inroads on the right of other newspapers which
Art. 19 [1] (a) guarantees to them. There may
be other ways of helping them and it is for
the State to search for them but the one they
have chosen falls foul of the Constitution.
To repeat, the only restrictions which may be
imposed on the rights of an individual under
Art. 19 [1] (a) are those which cl. [2] of Art
19 permits and no other".
12. In Bennett Coleman & Co. & Ors. v. Union of India &
Ors. [(1972) 2 SCC 788], the majority of the Constitution
Bench held that newspapers should be left free to determine
their pages, their circulation and their new edition within
their quota which has been fixed fairly. It is an
abridgment of freedom of expression to prevent a common
ownership unit from starting a new edition or a new newspaper. A common ownership unit should be free to start a new
edition out of their allotted quota and it would be logical
to say that such a unit can use its allotted quota for
changing its page structure and circulation of different
editions of same paper. The compulsory reduction to ten
pages offends Article 19 [1] (a) and infringes the freedom
of speech and expression. Fixation of page limit will not
only deprive the petitioners of their economic viability,
but will also restrict the freedom of expression by reasonhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 109
of the compulsive reduction of page level entailing
reduction of circulation and including the area of coverage
for news and views. Loss of advertisements may not only
entail the closing down, but will also affect the
circulation and thereby impinge on freedom of speech and
expression. The freedom of press entitles newspapers to
achieve any volume of circulation. It was further held that
the machinery of import control cannot be utilised to curb
or control circulation or growth or freedom of
newspapers.The news print control policy was in effect a
newspaper control policy and a newspaper control policy is
ultra vires the Import Control Act and the Import Control
Order. The majority further held that by the freedom of
press is meant the right of citizens to speak and publish
and express their views. The freedom of the press embodies
the right of the people to read and it is not ante-thetical
to the right of the people to speak and express. The
freedom of speech and expression is not only in the volume
of circulation but also in the volume of news and views.
The press has the right of free publication and their
circulation without any obvious restraint on publication.
If the law were to single out press
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for laying down prohibitive burdens on it that would
restrict circulation, penalise freedom of choice as to
personnel, prevent newspapers from being started and compel
the press to Government aid. This would violate Article 19
[1] (a) and would fall outside the protection afforded by
Article 19 [2]. The First Amendment to the American
Constitution contains no exception like our Article 19 [2].
Therefore, American decisions have evolved their own
exceptions. The American decisions establish that a
Government regulation is justified in America as an
important essential Government interest which is unrelated
to the suppression of free expression. The true test is
whether the effect of the impugned action is to take away or
abridge fundamental rights. The object of the law or
executive action is irrelevant when it is established that
the petitioner’s fundamental right is infringed.
13. In Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors.
v. Union of India & Ors. [(1985) 1 SCC 641 ], the Court held
that the expression "freedom of the press" has not been used
in Article 19, but it is comprehended within Article 19 [1]
(a). This expression means a freedom from interference from
authority which would have the effect of interference with
the content and circulation of newspapers. There cannot be
any interference with that freedom in the name of public
interest. The purpose of the press is to advance the public
interest by publishing facts and opinions without which
democratic electorate cannot make responsible judgments.
Freedom of the press is the heart of social and political
intercourse. It is the primary duty of the Courts to up-
,,hold the freedom of the press and invalidate all laws or
administrative actions which interfere with it contrary to
the constitutional mandate. The freedom of expression has
four broad social purposes to serve: [i] it helps an
individual to attain self fulfilment, [ii] it assists in the
discovery of truth, [iii] it strengthens the capacity of an
individual in participating in decision-making and [iv] it
provides a mechanism by which it would be possible to
establish a reasonable balance between stability and social
change. All members of the society should be able to form
their own beliefs and communicate them freely to others. In
sum, the fundamental principle involved here is the people’s
right to know. Freedom of speech and expression should,http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 109
therefore, receive a generous support from all those who
believe in the participation of people in the
administration. It is on account of this special interest
which society has in the freedom of speech and expression
that the approach of the Government should be more cautious
while levying taxes on matters concerning newspaper industry
than while levying taxes on other matters.The Courts are
there always to strike down curtailment of freedom of press
by unconstitutional means. The delicate task of determining
when it crosses from the area of profession, occupation,
trade, business or industry into the area of freedom of
expression and interferes with that freedom is entrusted to
the Courts. In deciding the reasonableness of restrictions
imposed on any fundamental right the Court should take into
consideration the nature of the right alleged to have been
infringed, the underlying purpose of the restrictions
imposed, the disproportion of the imposition and the
prevailing conditions including the social values whose
needs are sought to be satisfied by means of the
restrictions. The imposition of a tax like the custom duty
on
130
news print is an imposition of tax on knowledge and would
virtually amount to a burden imposed on a man for being
literate and for being conscious of his duty as a citizen to
inform himself of the world around him. The pattern of the
law imposing custom duty and the manner in which it is
operated, to a certain extent, exposes the citizens who are
liable to pay the custom duties to the vagaries of executive
discretion.
14. In Odyssey Communications Pvt. Ltd. v. Lokvidayan
Sanghatana and others [(1988) 3 SCC 410 ], it was held that
the right of citizens to exhibit films on Doordarshan
subject to the terms and conditions to be imposed by the
Doordarshan is a part of the fundamental right of freedom of
expression guaranteed under Article 19 [1] (a) which can be
curtailed only under circumstances set out under Article 19
[2]. The right is similar to the right of citizen to public
his views through any other media such as newspapers, magazines, advertisement hoarding etc. subject to the terms and
conditions of the owners of the media. The freedom of
expression is a preferred right which is always very
zealously guarded by the Supreme Court. However, on the
question whether a citizen has a fundamental right to establish a private broadcasting station or T.V. centre, the
Court reserved its opinion for decision in an appropriate
case. The matter had come up before this Court against an
interim injunction order issued by the High Court as a
result of which 12th and 13th episodes of the film "HoniAnhoni" could not be telecast on the scheduled dates. The
Court held that it was not the case of the writ petitioners
before the High Court that the exhibition of the said serial
was in contravention of any specific law or direction issued
by the Government. They had also not alleged that the
Doordarshan had shown any undue favour to the appellant and
the sponsoring institutions resulting in any financial loss
to the public exchequer. The objection to the exhibition of
the film had been raised by them on the basis that it was
likely to spread false or blind beliefs among the members of
the public. They had not asserted any right conferred on
them by any statute or acquired by them under a contract
which entitled them to secure an order of temporary
injunction. The appellant before this court had denied that
the exhibition of the serial was likely to affect
prejudicially the wellbeing of the people. The Union ofhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 109
India and Doordarshan had pleaded that the serial was being
telecast after following the prescribed procedure and taking
necessary precautions. The writ petitioners had not
produced any material. apart from their own statements to
show" that the exhibition of the serial was prima facie
prejudicial to the community. This Court held that the High
Court had overlooked that the issue of an order of interim
injunction would infringe the fundamental right of the
producer of a serial. In the absence of any prima facie
evidence of gross prejudice that was likely to be caused to
the public generally by the exhibition of the serial, it was
not just and proper to issue an order of temporary injunction.
15. In S. Rangarajan v. P. Jagjivan Ram & Ors. [(1989) 2
SCC 574], it was held that the-freedom of speech under Article 19 [1] (a) means the right to express one’s opinion by
words of mouth, writing, printing, picture or in any other
manner. It would thus include the freedom of communication
and,their right to propagate or
131
publish opinion. The communication of ideas could be made,
through any medium, newspaper, magazine or movie. But this
right is subject to reasonable restriction in the larger
interests of the community and the country set out in
Article 19 [2]. These restrictions are intended to strike a
proper balance between the liberty guaranteed and the social
interests specified in Article 19 [2]. This is the
difference between the First Amendment to the U.S.
Constitution and Article 19 of our Constitution. The
decisions bearing on the First Amendment are, therefore, not
useful to us except the broad principle and purpose of the
guarantee. The Court, in this connection, referred to the
U.S. decisions in Mutual Film Corporation v. Industrial
Commission [236 US 230 (1915)], Burslyn v. Wilson [343 US
495] and Schenck v. United States [249 US 47]. The Court
further held that there should be a compromise between the
interest of freedom of expression and social interests. The
Court cannot simply balance the two interests as if they are
of equal weight. The Court’s commitment to freedom of
expression demands that it cannot be suppressed unless the
situations created by allowing the freedom are pressing and
the community interest is endangered. The anticipated
danger should not be remote, conjectural or far-fetched. It
should have proximate and direct nexus with the expression.
The expression of thought should be intrinsically dangerous
to the public interests. It should be inseparably locked up
with the action contemplated like the equivalent of a "spark
in a powder keg". Though movie enjoys the guarantee under
Article 19 [1] (a), there is one significant difference
between the movie and other modes of communication. Movie
motivates thought and action and assures a high degree of
attention and retention. In view of the scientific improvements in photography and production, the present movie is a
powerful means of communication. It has a unique capacity
to disturb and arouse feelings. It has much potential for
evil as it has for good. With these qualities and since it
caters for mass audience who are generally not selective
about what they watch, the movie cannot be equated with
other modes of communication. It cannot be allowed to
function in a free marketplace just as does the newspaper or
magazines. Censorship by prior restraint is, therefore, not
only desirable but also necessary. But the First Amendment
to the U.S. Constitution does not permit any prior
restraint, since the guarantee of free speech is in
unqualified terms. Censorship is permitted mainly on thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 109
ground of social interests specified under Article 19 [2]
with emphasis on maintenance of values and standards of
society. Therefore, censorship with prior restraint must
necessarily be reasonable that could be saved by the well
accepted principles of judicial review. The standard to be
applied by the board or courts for judging the film should
be that of an ordinary man of common sense and prudence and
not that of an out of the ordinary or hypersensitive man.
The board should exercise considerable circumspection on
movies affecting the morality or decency of our people and
cultural heritage of the country. The moral values in
particular, should not be allowed to be sacrificed in the
guise of social change or cultural assimilation. The path
of right conduct shown by the great sages and thinkers of
India and the concept of ’Dharam’ [righteousness in every
respect], which are the bedrock of our civilisation, should
not be allowed to be shaken by unethical standards. But
this does not mean that the censors should have an orthodox
132
or conservative outlook. Far from it, they must be
responsive to social change and they must go with the
current climate. However, the censors may display more
sensitivity to movies which will have a markedly deleterious
effect to lower the moral standards of those who see it.
16. However, the producer may project his own message
which the others may not approve of it. But he has a right
to ’think out’ and put the counter-appeals to reason. It is
a part of a democratic give and take to which one could
complain. The State cannot prevent open discussion and open
expression, however hateful to its policies. Everyone has a
fundamental right to form his own opinion on any issue of
general concern. He can form and inform by any legitimate
means. The democracy is a government by the people via open
discussion. The democratic form of government itself
demands its citizens an active and intelligent participation
in the affairs of the community. The public discussion with
people’s participation is a basic feature and a rational
process of democracy which distinguishes it from all other
forms of government.
17. Dealing with the film in question, the Court further
observed that the film in the present case suggests that the
existing method of reservation on the basis of caste is bad
and reservation on the basis of economic backwardness is
better. The film also deprecates exploitation of people on
caste consideration. This is the range and rigours of the
film. There is no warrant for the view that the expression
in the film by criticism of reservation policy or praising
the colonial rule will affect the security of the State or
sovereignty and integrity of India. There is no utterrance
in the film threatening to overthrow the government by
unlawful or unconstitutional means or for secession; nor is
there any suggestion for impairing the integration of the
country. Two Revising Committees have approved the film.
The members thereof come from different walks of life with
variegated experiences. They represent the cross-section of
the community. They have judged the film in the light of
the objectives of the Act and the guidelines provided for
the purpose. There is nothing wrong or contrary to
Constitution in approving the film for public exhibition.
The producer or as a matter of fact, any other person has a
right to draw the attention of the government and people
that the existing method of reservation in educational
institutions overlooks merits. Whether this view is right
or wrong is another matter altogether and at any rate, the
Court is not concerned with its correctness or usefulness tohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 109
the people. The Court is only concerned whether such a view
could be advocated in a film. To say that one should not be
permitted to advocate that view goes against the first
principle of our democracy. If the film is unobjectionable
and cannot constitutionally be restricted under Article 19
[2], freedom of expression cannot be suppressed on account
of threat of demonstration and processions or threats of
violence. That would tantamount to negation of the rule of
law and a surrender to blackmail and intimidation. It is
the duty of the State to protect the freedom of expression
since it is a liberty guaranteed against the State. The
State cannot plead its inability to handle the hostile
audience problem. Freedom of expression which is legitimate
and constitutionally protected cannot be held to ransom by
an intolerant group of people. The fundamental freedom
under Article 19
133
[1] (a) can be reasonably restricted only for the purposes
mentioned in Article 19 [2] and the restriction must be
justified on the anvil of necessity and not the quicksand of
convenience or expediency. Open criticism of government
policies and operations is not a ground for restricting expression.
18. The views taken by this Court in the aforesaid
decisions have thereafter been repeated and reproduced in
the subsequent decisions.
19. In Printers (Mysore) Ltd. & Anr v. Asst. Commercial
Tax Officer & Ors. [(1994) 2 SCC 434], it is reiterated that
the special treatment given to the newspapers has a
philosophy and historical background. Freedom of press has
been placed on a higher footing than other enterprises.
Though freedom of press is not expressly guaranteed as a
fundamental right, it is implicit in the freedom of speech
and expression. Freedom of press has always been a
cherished right in all democratic countries. Therefore, it
has rightly been described as the Fourth Estate. The democratic crede is of a State are judged today by the extent of
freedom the press enjoyed in that State. This decision
quotes from the. opinion of Douglas, J. in Terminiello v.
Chicago [93 L.ed 1131: 337 US 1 (1949)] that "acceptance by
Government of a dissident press is a measure of the maturity
of the nation".
20. In Life Insurance Corporation of India v. Professor
Manubhai D. Shah [(1992) 3 SCC 6371, the respondent-Executive Trustee of the Consumer Education and Research
Centre [CERC], Ahmedabad, after making research into the
working of the Life Insurance Corporation [LIC], published a
study paper portraying the discriminatory practice adopted
by the LIC by charging unduly high premia from those taking
out life insurance policies and thus denies access to
insurance coverage to a vast majority of people who cannot
afford to pay the high premium. A member of the LIC wrote a
counter article and published it in the daily newspaper
"Hindu". The respondent replied to the same in the said
newspaper. The member of LIC then published his counterreply in LIC’s house magazine. The respondent requested the
LIC to publish his rejoinder also in the said magazine.
That request was turned down. On these facts, the respondent filed a writ petition before the High Court
challenging the action of the LIC, among other things, on
the ground that his fundamental right under Article 19 [1]
(a) of the Constitution was violate by LIC by refusing to
publish his reply. The High Court held that under the pretext and guise of publishing a house magazine, the LIC
cannot violate the fundamental rights of the petitioner.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 109
This Court endorsing the view taken by the High Court held
that the LIC is ’State’ within the meaning of Article 12.
The LIC Act requires it to function in the best interest of
the community. The community is, therefore, entitled to
know whether or not this requirement of the statute is being
satisfied in the functioning of the LIC. The respondent’s
efforts in preparing the study paper was to bring to the
notice of the community that the LIC had strayed from its
path by pointing out that its premium rates were unduly high
when they could be low if the LIC avoided the wasteful
indulgences. The endeavour was to enlighten the community
of the drawbacks and shortcomings of the LIC and to pinpoint
the area where improvement was
134
needed and was possible. By denying to the policy-holders,
the information contained in the rejoinder prepared by the
respondent, the LIC cannot be said to be acting in the best
interest of the community. There was nothing offensive in
the rejoinder which fell within the restriction clauses of
Article 19 [2]. Nor was it prejudicial to the members of
the community or based on imaginary or concocted material.
On the basis of the fairness doctrine the LIC was under an
obligation to publish the rejoinder. The respondent’s fundamental right to speech and expression clearly entitled him
to insist that his views on the subject should reach those
who read the magazine so that they have complete picture
before them instead of a one-side or distorted picture The
Court also pointed out that the attitude of the LIC in
refusing to publish the rejoinder in their magazine financed
from public funds, can be described as both unfair and
unreasonable unfair because fairness demanded that both
view-points were placed before the readers and unreasonable
because there was no justification for refusing publication.
The monopolistic State instrumentality which survives on
public funds cannot act in an arbitrary manner on the
specious plea that the magazine is an in-house one and it is
a matter of its exclusive privilege to print or refuse to
print the rejoinder. By refusing to print and publish the
rejoinder’, the LIC had violated respondent’s fundamental
right. The Court must be careful to see that it does not
even unwittingly’ aid the effort to defeat the parties’
right. Every free citizen has an undoubted right to lay
what sentiments he pleases before the public. Freedom to
air one’s views is the lifeline of any democratic
institution and any attempt to stifle, suffocate or gag this
right would sound a death-knell to democracy and would help
usher in autocracy or dictatorship. This Court has always
placed a broad interpretation on the value and content of
Article 19 [1] (a), making it subject only to the
restrictions permissible under Article 19 [2]. Efforts by
intolerant authorities to curb or suffocate this freedom
have always been firmly repelled, more so when public
authorities have betrayed autocratic tendencies. The Court
then went on to observe:
broadly construed to include the freedom to
circulate one’s views by words of mouth or in
writing or through audio-visual
instrumentalities. It, therefore, includes
the right to propagate one’s views through the
print media i.e., periodicals, magazines or
journals or through any other communication
channel e.g. the radio and the television.
The right extends to the citizen being permit-
ted to use the media to answer the criticism
levelled against the view propagated by him.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 109
The print media, the radio and the tiny screen
play the role of public educators, so vital to
growth of a healthy democracy. These
communication channels are great purveyors of
news and views and make considerable impact on
the minds of the readers and viewers and are
known to mould public opinion on vital issues
of national importance. Modem communication
mediums advance public interest by informing
the public of the events and developments that
have taken place and thereby educating the
voters, a role considered significant for the
vibrant functioning of a democracy.
Therefore, in any set-up, more so in a
democratic set-up like ours, dissemination of
news and views for popular consumption is a
must and any attempt to deny the same must be
frowned upon unless it falls within the
mischief of Article 19 [2].This freedom must,
however,be exercised with
135
circumspection and care must be taken not to
trench on the rights of other citizens or to
jeopardise public interest.
A constitutional provision is never static, it
is ever-evolving and ever-changing and,
therefore, does not admit of a narrow,
pedantic or syllogistic approach. The Con-
stitution-makers employed broad phraseology
while the fundamental tights so that they may
be able to cater to the needs of a changing
society. Therefore, constitutional provisions
must receive a broad interpretation and the
scope and ambit of such provisions, in
particular the fundamental rights, should not
be cut down by too astute or too restricted an
approach, unless the context otherwise re-
quires.
21.The facts in the other case which was disposed of
simultaneously by the same judgment were that the
Doordarshan refused to telecast a documentary film on the
Bhopal Gas Disaster titled ’Beyond Genocide’ produced by the
respondent Ciment Foundation on the grounds that [i] the
film was outdated, [ii] it had lost its relevance, [iii] it
lacked moderation and restraint, [iv] it was not fair and
balanced, [v] political parties were raising various issues
concerning the tragedy, [vi] claims for compensation by the
victims were sub judice, [vii] the film was.likely to create
commotion in the already charged atmosphere and [viii] the
film criticised the action of the State Government and it
was not permissible under the guidelines. The respondent
filed a writ petition in the High Court on the ground of
violation of his fundamental right under Article 19 [1] (a)
and for a mandamus to the Doordarshan to telecast the film.
The High Court held that the respondent’s right under
Article 19 [1] (a) obliged the Doordarshan to telecast the
film and directed the Doordarshan to telecast the film at a
time and date, convenient to it keeping in view the public
interest, and on such terms and conditions as it would like
to impose in accordance with the law. In the appeal against
the said decision filed in this Court, the Court held that
once it has recognised that the film maker has the
fundamental right under Article 19 [1] (a) to exhibit the
film, the onus lies on the party which claims that it was
entitled to refuse enforcement of this right by virtue ofhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 109
law made under Article 19 [2] to show that the film did not
conform to requirements of that law. Doordarshan being a
State-controlled agency funded by public funds could not
have denied access to screen except on valid grounds. The
freedom conferred on a citizen by Article 19 [1] (a)
includes the freedom to communicate one’s ideas or thoughts
through a newspaper, a magazine or a movie. Traditionally,
prior restraints, regardless of their form, are frowned upon
as threats to freedom of expression since they contain
within themselves forces which if released have the
potential of imposing arbitrary- and at times direct
conflict with the right of another citizen. Censorship by
prior restraint, therefore, seems justified for the protection of the society from the ill-effects that a motion
picture may produce if unrestricted exhibition is allowed.
Censorship is thus permitted to protect social interests
enumerated in Article 19 [2] and Section 5-B of the Cinema
to graph Act. For this reason, need for prior restraint has
been recognised and our laws have assigned a specific role
to the censors, as such is the need in a rapidly changing
societal structure. But since permissible restrictions,
albeit reasonable, are all the same restrictions, they are
bound to be viewed as anathema, in that, they are in the
nature of
136
curbs or limitations on the exercise of the right and are,
therefore, bound to be viewed with suspicion, thereby
throwing a heavy burden on the authorities that seek to
impose them to show that the restrictions are reasonable and
permissible in law. Such censorship must be reasonable and
must answer the test of Article 14.
22. In this connection, it will be interesting also to know
the content of the right to freedom of speech and expression
under the First Amendment to the American Constitution where
the freedom of press is exclusively mentioned as a part of
the said right unlike in Article 19 [1] (a) of our
Constitution. Further, the restrictions on the right are
not spelt out as in our Constitution under Article 19 [2].
But the U.S. Supreme court has been reading some of them as
implicit in the right. In principle, they make no
difference to the content of the right to the freedom of
speech and expression under our Constitution.
23. In National Broadcasting Company v. United States
of America [319 US 190238 : 87 L ed 1344], it was held,
inter alia, that the wisdom of regulations adopted by the
Federal Communications Commission is not a matter for the
courts, whose duty is at an end when they find that the
action of the Commission was based upon findings supported
by evidence, and was made pursuant to authority granted by
Congress.
24. In Joseph Burstyn v Lewis A. Wilson [343 US 495: 96 L
ed 1098] a licence granted for the exhibition of a motion
picture was rescinded by the appropriate New York
authorities -on the ground that the picture was
"sacrilegious" within the meaning of a statute requiring the
denial of a licence if a film was "sacrilegious". The
statute was upheld by the State courts. The Supreme Court
unanimously reversed the decision of the State courts.
Disapproving a contrary theory expressed in Mutual Film
Corp. v. Industrial Com. of Ohio [236 US 230: 59 L ed 442],
six members of the Supreme Court in an opinion of Clerk, J.
held that the basic principles of freedom of speech and
press applied to motion pictures, even though their
production, distribution, and exhibition is a large-scale
business conducted for profit. The court recognised thathttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 109
motion pictures are not necessarily subject to the precise
rules governing any other particular method of expression,
but found it not necessary to decide whether a State may
censor motion pictures under a clearly drawn statute, and
limited its decision to the holding that the constitutional
guarantee of free speech and press prevents a state from
banning a film on the basis of a censor’s conclusion that it
is " sacrilegious". Reed, J. in a concurrent opinion
emphasised that the question as to whether a state may
establish a system for the licensing of motion pictures was
not foreclosed by the court’s opinion. Frankfurter, J. with
Jackson and Burton, JJ. held that the term "sacrilegious" as
used in the statute was unconstitutionally vague.
25.In Red Lion Broadcasting Co. etc. el. al. v. Federal
Communications Commission et. al. and United Slates et. al.
v. Radio Television News Directors Association et al. [395
US 367: 23 L Ed 2d 3711 which two cases were disposed of by
common judgment, the facts were that in the first case, the
Broadcasting Company carried as a part of "Christian
Crusade" series, a 15-minute broadcast in which a third
person’s honesty and character were at-
137
tacked. His demand for free reply time was refused by the
broadcasting station. Federal Communications Commission
[FCC] issued a declaratory order to the effect that the
broadcasting station had failed to meet its obligation under
the FCC’s fairness doctrine. The Court upheld the FCC’s
directions.
26.In the second case, the FCC after the commencement of the
litigation in the same case made the personal attack aspect
of the fairness doctrine more precise and more readily
enforceable. The Court upheld the FCC’s rules overruling
the view taken by the Court of Appeals that the rules were
unconstitutional as abridging the freedom of speech and
press.
27.The Court dealing with the two cases held:
"Just as the Government may limit the use of
sound-amplifying equipment potentially so
noisy that it drowns out civilized private
speech, so may the Govenrnment limit the use
of broadcast equipment. The right of free
speech of a broadcaster, the user of a sound
track, or any other individual does not
embrace a right to snuff out the free speech
of others.
x x x x x x x
for public broadcasting were limited in
number, it was essential for the Government to
tell some applicants that they could not
broadcast at all because there was room for
only a few.
x x x x x x x
Where there are substantially more individuals
who want to broadcast than there are
frequencies to allocate, it is idle to posit
an unabridgeable First Amendment right to
broadcast comparable to the right of every
individual to speak, write, or publish. If
100 persons want broadcast licences but there
are only 10 frequencies to allocate, all of
them may have the same "right" to a license;
but if there is to be any effective
communication by radio, only a few can be
licensed and the rest must be barred from the
airwaves. It would be strange if the Firsthttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 109
Amendment, aimed at protecting and furthering
communications, prevented the government from
making radio communication possible by
requiring licenses to broadcast and by
limiting the number of licenses so as not to
overcrowd the spectrum.
This has been the consistent view of the
Court. Congress unquestionably has the power
to grant and deny licenses and to eliminate
existing stations... No one has a First
Amendment right to a license or to monopolize
a radio frequency; to deny a station license
because "the public interest" requires it "is
not a denial of free speech.
By the same token, as far as the First
Amendment is concerned those who are licensed
stand no better than those to whom licenses
are refused. A license permits broadcasting,
but the licensee has no constitutional right
to be the one who holds the license or to
monopolize a radio frequency to the exclusion
of his fellow citizenis. There is nothing in
the First Amendment which prevents the
Govenunent from requiring a licensee to share
his frequency with others and to conduct
himself as a proxy or fiduciary with
obligations to present those views and voices
which are representative of his community and
which would otherwise, by necessity, be barred
from the airwaves.
This is not to say that the First Amendment is
irrelevant to public broad-
138
casting. On the contrary, it has a major role
to play as the Congress itself recognized,
which forbids FCC interference with "the right
of free speech by means of radio
communication.
Because of the scarcity of radio frequencies,
the Government is permitted to put restraints
on licensees in favour of others whose views
should be expressed on this unique medium.
But the people as a whole retain their
interest in free speech by radio and their
collective right to have the medium function
consistently with the ends and purposes of the
First Amenchnent. It is the right of the
viewers and listeners, not the right of the
broadcasters, which is paramount...
It is the purpose of the First Amendment to
preserve an uninhibited marketplace of ideas
in which truth will ultimately prevail, rather
than to countenance monopolization of that
market, whether it be by the Government itself
or a private licensee... It is the right of
the public to receive suitable access to
social, political, esthetic, moral, and other
ideas and experiences which is crucial here.
That right may not constitutionally be
abridged either by Congress or by the FCC...
right on licensees to prevent others from
broadcasting on t ’their" frequencies and no
right to an unconditional monopoly of a scarce
resource which the Government has denied
others the right to use.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 109
x x x x x x x
Nor can we say that it is inconsistent with
the First Amendment goal of producing an
informed public capable of conducting its own
affairs to require a broadcaster to permit
answers to personal attacks occurring in the
course of discussing controversial issues, or
to require that the political opponents of
those endorsed by the station be given a
chance to communicate with the public.
Otherwise, station owners and a few networks
would have unfettered power to make time
available only to the highest bidders, to com-
municate only their own views on public
issues, people and candidates, and to permit
on the air only those with whom they agreed.
There is no sanctuary in the First Amendment
for unlimited private censorship operating in
a medium not open to all. "Freedom of the
press from governmental interference under the
First Amendment does not sanction repression
of that freedom by private interests.
x x x x x x x
licensees given the privilege of using scarce
radio frequencies as proxies for the entire
community, obligated to give suitable time and
attention to matters of great public concern.
To condition the granting or renewal of
licenses on a willingness to present
representative community views on
controversial issues is consistent with the
ends and purposes of those constitutional
provisions forbidding the abridgment of
freedom of speech and freedom of the press.
Congress need not stand idly by and permit
those with licenses to ignore the problems
which beset the people or to exclude from the
airways anything but their own views of
fundamental questions....
Licenses to broadcast do not confer ownership
of designated frequencies, but only the
temporary privilege of using them."
28.Referring to the contention that although at one time the
lack of available frequencies for all who wished to use them
justified the Government’s choice, of those
139
who would best serve the public interest by acting as proxy
for those who would present differing views, or by giving
the latter access directly to broadcast facilities, the said
condition no longer prevailed to invite continuing control,
the Court held:
"Scarcity is not entirely a thing of the past.
Advances in technology, such as microwave
transmission, have led to more efficient
utilisation of the frequency spectrum, but
uses for that spectrum have also grown apace.
Portions of the spectrum must be reserved for
vital uses unconnected with human
communication, such as radio-navigational aids
used by aircraft-and vessels. Conflicts have
even emerged between such vital functions as
defense preparedness and experimentation in
methods of averting n-ddair collisions through
radio warning devices. "Land mobile services"
such as police, ambulance, fire department,http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 109
public utility, and other communications
system have been occupying an increasingly
crowded portion of the frequency spectrum and
there are, apart from licensed amateur radio
operators’ equipment, 5,000,000 transmitters
operated on the "citizens’ band" which is also
increasingly congested. Among the various
uses for radio frequency space, including
marine, aviation, amateur, military, and
common carrier users, there are easily enough
claimants to permit use of the whole with an
even smaller allocation to broadcast radio and
television uses than now exists.
Comparative hearings between competing
applicants for broadcast spectrum space are by
no means a thing of the past. The radio
spectrum has become so. congested that at
times it has been necessary to suspend new
applications. The very high frequency
television spectrums, in the country’s major
markets, ahmost entirely occupied, although
space reserved for ultra high frequency
television transmission, which is a relatively
recent development as a commercially viable
alternative, has not yet been completely
filled.
The rapidity with which technological advances
succeed one another to create more efficient
use of spectrum space on the one hand, and to
create new uses for that space by ever growing
numbers of people on the other, makes it
unwise to speculate on the future allocation
of that space. It is enough to say that the
resource is one of considerable and growing
importance whose scarcity impelled its
regulation by an agency authorised by
Congress. Nothing in this record, or in our
own researches, convinces us that the resource
is no longer one for which there are more
immediate and potential uses than can be
accommodated, and for which wise planning is
essential. This does not mean, of course,
that every possible wavelength must be
occupied at every hour by some vital use in
order to sustain the congressional judgment.
The substantial capital investment required
for many uses, in addition to the potentiality
for confusion and interference inherent in any
scheme for continuous kaleidoscopic
reallocation of all available space may make
this unfeasible. The allocation need not be
made at such a breakneck pace that the
objectives of the allocation are themselves
imperiled.
Even where there are gaps in spectrum
utilization, the fact remains that existing
broadcasters have often attained their present
position because of their initial government
selection in competition with others before
new technological advances opened new
opportunities for further uses. Long
experience in broadcasting, confirmed habits
of listeners and viewers, network affiliation,
and other advantages in program procurement
give existing broadcasters a substantialhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 109
advantage over new entrants, even where new
entry is technologically possible. These
140
advantages are the fruit of a preferred
position conferred by the Government. Some
present possibility for new entry by competing
stations is not enough, in itself, to render
unconstitutional the Government’s effort to
assure that a broadcaster’s programming ranges
widely enough to serve the public interest.
In view of the scarcity of broadcast
frequencies, the Government’s role in al-
locating those frequencies, and the legitimate
claims of those unable without governmental
assistance to gain access to those frequencies
for expression of their views, we hold the
regulations and ruling at issue here are both
authorized by statute and constitutional."
29. In Columbia Broadcasting System etc. etc. v. Democratic
National Committee etc. etc.[412 US 94 : 36 L Ed 2d 772], in
separate decisions rejecting the contentions that the
general policy of certain radio and television broadcast
licensees of not selling any editorial advertising time to
individuals or groups wishing to speak out on public issues
violated the Federal Communications Act of 1934 and the
First Amendment, such contentions having been asserted in
actions instituted by a national Organisation of businessmen
opposed to United States involvement in Vietnam and by the
Democratic National Committee, the US Court of Appeals for
the District of Columbia Circuit reversed the Commission.
However, the US Supreme Court reversed the Court of Appeals.
Burger, C.J. expressing the views of the six members of the
Court held:
"...[1] the First Amendment issues involved in
the case at bar had to be evaluated within the
framework of the statutory and regulatory
scheme that had developed over the years,
affording great weight to the decisions of
Congress and the experience of the Federal
Communications Commission, and [2] under the
Federal Communications Act and the
Commission’s "fairness doctrine," broadcast
licensees had broad journalistic discretion in
the area of discussion of public issues.
It was also held, expressing the views of five
members of the court [Part IV of the opinion],
that [3] neither the public interest standards
of the Federal Communications Act nor the
First Amendment, assuming that there was
governmental action for First Amendment
purposes, required broadcasters to accept
editorial advertisements, notwithstanding that
they accepted commercial advertisements, and
[4] the Commission was justified in concluding
that the public interest would not be served
by a system affording a right of access to
broadcasting facilities for paid editorial
advertisements, since such a system would be
heavily weighted in favor of the financially
affluent, :would jeopardize effective
operation of the Commission’s "fairness
doctrine", and would increase government
involvement in broadcasting by requiring the
Commission’s daily supervision of broad-
casters’ activities...... a broadcaster’s re-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 109
fusal to accept any editorial advertisements
was not governmental action for purposes of
the First Amendment, since private
broadcasters, even though licensed and
regulated to some extent by the government,
were not instrumentalities or "partners" of
the government for First Amendment purposes,
and since the Commission, in declining to
reject the broadcasters’ policies against
accepting editorial -advertisements, had not
fostered or required such policy".
30.It may be mentioned here that unlike in this country, in
United States, the private individuals and institutions are
141
given licences to have their own broadcasting stations and
hence the right of the private broadcasters against the
right of others who did not own the broadcasting stations
but asserted their right of free speech and expression were
pitted against each other in this case and the decision has
mainly turned upon the said balancing of rights of both
under the First Amendment. It was in substance held that
any direction to the private broadcasters by the Government
to sell advertising time to speak out on public issues
violated the protection given by the First Amendment to the
private broadcasters against Government control.
31.In Federal Communications Commission et al. v. WNCN
Listeners Guild et al. [450 Us 582 : 67 L Ed 2d 521], a
number of citizen groups interested in fostering and
preserving particular entertainment formats petitioned for
review of the Policy Statement of Federal Communications
Commission [FCC] in the US Court of Appeals for the District
of Columbia Circuit. The Court held that the Policy
Statement was contrary to the Communications Act of 1934.
The US Supreme Court reversed the decision of the Court of
Appeals by majority, holding, inter alia, that the Policy
Statement was not inconsistent with the Communications Act
since the FCC provided a rational explanation for its
conclusion that reliance on the market was the best method
of promoting diversity in entertainment formats and that the
FCC’s judgment regarding how the public interest is best
served was entitled to substantial judicial deference and
its implementation of the public interest standard, when
based on a rational weighing of competing policies was not
to be set aside. Marshall and Brennan, JJ., however, held
that in certain limited circumstances, the FCC may be
obliged to hold a hearing to consider whether a proposed
change in a licensee’s entertainment programme format is in
the public interest and that the FCC’s Policy Statement
should be vacated since it did not contain a safety valve
procedure that allowed the FCC the flexibility to consider
applications for exemptions based on special circumstances
and since it failed to provide a rational explanation for
distinguishing between entertainment and non-entertainment
programming for purposes of requiring Commission review of
format changes.
32.In City of Los Angeles & Department of Water and Power v.
Preferred Communications, Inc. [476 US 488: 90 L ed 2d 480],
a cable television company asked a public utility and the
city of Los Angeles’s water and power department for
permission to lease space on their utility poles in order to
provide cable television service to part of the city. The
respondent-company was told that it must first obtain
franchise from the appellant-City which refused to grant one
on grounds that the company had failed to participate in an
auction that was to award a single franchise in the area.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 109
The respondent sued claiming violation of his right under
the free speech clause of the First Amendment. It was
alleged in the complaint that there was sufficient physical
capacity and the economic demand in the area at issue to
accommodate more than one cable company and that the city’s
auction process allowed it to discriminate among applicants.
As against this, the appellant argued that lack of space on
public utility structures, the limited economic demand, and
the practical and aesthetic disruptive effects on the public
right of way justified
142
its decision. The District Court dismissed the complaint.
On appeal, the US Court of Appeals reversed and remanded
’,or further proceedings. The US Supreme Court affirmed the
Court of Appeals. Rehnquist, J. expressing the unanimous
decision of the Court held:
"...[1]that the cable television company’s
complaint should not have been dismissed,
since the activities in which it allegedly,
sought to engage plainly implicated First
Amendment interests where they included the
communications of messages on a wide variety
of topics and in a wide variety of formats,
through original programming or by exercising
editorial discretion over which stations or
programs to include in its repertoire, but [2]
that it was not desirable to express any more
detailed views on the proper resolution of the
First Amendment question without a more thor-
oughly developed record of proceedings in
which the parties would have an opportunity to
prove those disputed factual assertions upon
which they relied."
33.The position of law on the freedom of speech and press
has been explained in [16 Am Jur 2d 3431 as under:
"The liberty of the press was initially a
right to publish without a license that which
formerly could be published only with one, and
although this freedom from previous. restraint
upon publication could not be regarded as
exhausting the guaranty of liberty, the
prevention of that restraint was a leading
purpose in the adoption of the First
Amendment. It is well established that
liberty of the press historically considered
and taken up by the Federal Constitution,
means principally, although not exclusively,
immunity from previous restraints or
censorships. Stated differently, the rule is
that an essential element of the liberty of
the press is its freedom from all censorships
over what shall be published and exemption
from control, in advance, as to what shall ap-
pear in print....
x x x x x x
The freedom of speech and press embraces the
right to distribute literature, and
necessarily protects the right to receive
literature which is distributed. It is said
that liberty in circulating is as essential to
the freedom as liberty of publishing, since
publication without circulation would be of
little value.
The right or privilege of free speech and
publication, guaranteed by the constitutionshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 109
of the United States and of the several
states, has its limitations and is not an
absolute right, although limitations are
recognised only in exceptional cases.
x x x x x x
The question of when the right of free speech
or press becomes wrong by excess is difficult
to determine. Legitimate attempts to protect
the public, not from the remote possible
effects of noxious ideologies, but from
present excesses of direct, active conduct are
not presumptively bad because they interfere
with and in some of their manifestations
restrain the exercise of the First Amendment
rights. The issue in every case is whether
the words used are used hi such circumstances
and are of such a nature as to create a clear
and present danger that they will bring about
substantive evils which the federal or state
legislatures have a right to prevent; it is a
question of proximity and degree.
x x x x x x x
The freedoms of speech and press are not
limited to particular media of ex-
143
pression. Verbal expression is, of course,
protected, but the right to express one’s
views in an orderly fashion extends to the
communication of ideas by handbills and
literature as well as by the spoken word.
Picketing carried on in a non labor context,
when free from coercion, intimidation, and
violence, is constitutionally guaranteed as a
right of free speech."
34. In "Civil Liberties & Human Rights" authored by David
Feldman, the justification for and limits of freedom of
expression are stated in the following words.
The liberty to express one’s self freely is important for a
number of reasons. Firstly, self-expression is a significant instrument of freedom of conscience and selffulfillment. Second justification concerns epistemology.
Freedom of expression enables people to contribute to
debates about social and moral values. The best way to find
the best or truest theory or model of anything is to permit
the widest possible range of ideas to circulate. Thirdly,
the freedom of expression allows political discourse which
is necessary in any country which aspires to democracy. And
lastly, it facilitates artistic scholarly endeavours of all
sorts.
35. The obvious connection between press freedom and
freedom of speech is that the press is a medium for
broadcasting information and opinion. Firstly, media
freedom as a tool of self-expression is a significant
instrument of personal autonomy. Secondly, as a channel of
communication, it helps to allow the political discourse in
a democracy. Thirdly, it helps to provide one of the
essential conditions in scholarships making possible the exchange and evaluation of theories, explanations and
discoveries, and lastly, it helps to promulgate a society’s
cultural values and facilitates the debate about them, advancing the development and survival of civilisation.
36.Referring to the reasons for regulating the broadcasting
media, the learned author has stated that, first, the
Government realises the potential of channels of mass
communication for contributing to democracy or undermininghttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 109
it. They hoped to foster a public service ethos in
broadcastings so that it would be a medium for educating
and improving the population. Secondly in order to do this
its was necessary to keep the media of mass communications
from having programme policy dictated entirely by market
forces. A strong pubic sector and regulation of the independent sector when one started to operate, were called for.
Thirdly, when commercial broadcasters appeared on the scene,
1 and a regulatory scheme was being developed for them, it
was thought to be important to preserve a diversity of ideas
by preventing oligopolistic concentrations of power in the
hands of a few, usually rich and conservative media
magnates, and to ensure that licences were granted only to
people who could be expected not to abuse the privilege.
The need to preserve propriety has been a motivating factor
in the regulation of commercial broadcasting over much of
the world. Fourthly, government hoped to ensure that
civilised standards were maintained, to uphold social
values. Fifthly, wave lengths for broadcasting were
limited. This purely technical consideration sharply
distinguishes broadcasting from newspapers, and justifies a
higher level of regulation. In theory, if not in practice,
there is nothing to prevent any number of newspapers being
pub-
144
lished simultaneously. The only controlling mechanism
needed is that of market forces. This is not true of
broadcasting. Some control over the allocation of wavelengths is ’needed in order to ensure that there are
sufficient for all legitimate broadcasters. Lastly, another
legitimate object of national regulation is to protect the
intellectual property rights of programme makers and
broadcasters. It is permissible on this ground for an
Organisation to prevent people from getting access to
programmes without paying proper licence fees. One way of
preventing this is to encode programme transmissions and to
restrict access to decoders to people who pay the fee.
37. The freedom to receive and to communicate information
and ideas without interference is an important aspect of the
freedom of free speech and expression. We may in this
connection refer to Article 10 of the European Convention on
Human Rights which states as follows:
" 10.1. Everyone has the right to freedom of
expression. This right shall include freedom
to hold opinions and to receive and impart
information and ideas without interference by
public authority and regardless of frontiers.
This article shall not prevent States from
requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities,
may be subject to such formalities,
conditions, restrictions or penalties as are
-prescribed by law and are necessary in a
democratic society, in the interests of na-
tional security, territorial integrity or pub-
lic safety, for the prevention of disorder or
crime, for the protection of health or morals.
for the protection of the reputation or rights
of others, for preventing the disclosure of
information received in confidence, or for
maintaining the authority and impartiality of
the judiciary."
38.The next question which is required to be answered ishttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 109
whether there is any distinction between the freedom of the
print media and that of the electronic media such as radio
and television, and if so, whether it necessitates more
restrictions on the latter media.
39. Eric Barendt in his book titled " Broadcasting Law
[1993 Edn.] which presents a comparative study of the law in
five’ legal systems, viz., Great Britain, France, Germany,
Italy and United States of America, has dealt with the
subject succinctly. He has referred to a number of reasons
which are generally put forward to justify broadcasting
regulations and has dealt with each of them. The first
reason advanced is that because the airwaves are a public
resource, the Government or some agency on its behalf, is
entitled to license their use for broadcasting on the terms
it sees fit. A similar argument can now be deployed in
respect of cable broadcasting where an authority must give
permission before roads can be dug up for laying cable. The
learned author states that the case is unconvincing for it
infers that it is right for the Government to regulate
broadcasting from the fact that it has opportunity to do
this. It would be perfectly possible for Government to
allocate frequencies for cable franchises without programme
conditions on the basis of a competitive tender and allow
the resale by the purchaser. The argument, according to the
author, therefore, does not work. It does not justify
broadcasting regulations but almost explains how it is
feasible. The author, however, does not accept the
objection to this
145
reason for regulation that thereby Government acts
improperly by using their licensing power to purchase
broadcasters’ constitutional right to speech. According to
the author, this argument is less persuasive as it assumes
that broadcasters enjoy the same constitutional rights of
free speech as individuals talking in a bar or leafletting
in a high street. The author then deals with the second
reason given for regulation of broadcasting, viz., scarcity
of frequencies and points out that this argument referred to
in Red Lion Broadcasting case [supra] is less clear than appears at first sight, since it is not clear whether the
scarcity of frequencies refers to the limited number
allocated by the Government as available for broadcasting or
to the actual numerical shortage of broadcasting stations.
If it is the former, the scarcity is an artificial creation
of the Government rather than a natural phenomenon since it
reserves a number of frequencies for the use of the army,
police and other public services. The Government is then
not in a good position to argue for restrictions on
broadcasters’ freedom. The author then points out that as
far as the actual scarcity of broadcasting stations is
concerned, there has been an increase in the last 20 years
in the broadcasting stations in the United States while
there are fewer newspapers than there used to be. Similar
developments have occurred in European countries in the same
period, especially, since the advent of cable and satellite.
Further the scarcity argument cannot be divorced from
economic considerations. The shortage of frequencies and
the high cost of starting up broadcasting channel explain
their dearth in comparison with the number of newspapers and
magazines in 1961. However, it is now probably as difficult
to finance a new newspaper as it is a private television
channel, if not more so. Lastly, the author points out that
the scarcity argument is much less tenable than it used to
be. Cable and satellite have significantly increased the
number of available or potentially available channels sohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 109
that there are more broadcasting outlets than there are
national or local daily newspapers. Dealing with the third
reason advocated for giving differential treatment to the
broadcasting, viz., the character of the broadcasting media,
the author points out that it is said that television and
radio, are more influential on public opinion than the
press, or at least are widely thought to be so. The majority
of the US Supreme Court in FCC v. Pacifica Foundation [438
US 726] said that they intrude into the home and are more
pervasive and are more difficult to control than the print
media. In particular, it is hard to prevent children from
being exposed to broadcast while it is relatively easy to
stop them looking at magazines and papers which in any case
they will not be able to read or purchase. These grounds
underpin the extension of legal control in Britain over
violent and sexually explicit programmes through the
establishment of Broadcasting Standard Council and the
strengthening of the impartiality rules. In Third
Television Case [57 B Verf GE 295, 3 22-3 (198 1)] the German Constitutional Court dealing with a different version of
this argument has held that regulation is necessary to
guarantee pluralism and programme variety, whether or not
there is a shortage of frequencies and other broadcasting
outlets. The free market will not provide for broadcasting
the same variety found in the range of press and magazine
titles. Hence programme content should be regulated and the
media monopolies should be cut down by the application of
anti-trust laws. Thus both the
146
US and the German arguments lay stress on the power of
television and its unique capacity to influence the public.
According to the learned author, the arguments are difficult
to assess. Broadcasting does not intrude into the home
unless listeners and viewers want it to be. From the point
of view of constitutional principles it is not easy to
justify imposition of greater limits on the medium on the
ground that it is more influential than the written words.
It cannot be right to subject more persuasive types of
speech to greater restraints than those-imposed on less
effective varieties. The author, however, accepts the view
of the majority of the US Supreme Court in Pacifica case
[supra] which regarded broadcasting, particularly
television, as a uniquely pervasive presence in the lives of
most people. More time is spent watching television than
reading. The presence of sound and picture in any home
makes it an exceptional potent medium. It may also be
harder to stop children having access to ’adult material’ on
television than to pornographic magazines. This may not
apply to subscription channels, enjoyment of which is
dependent on a special decoder. He also agrees that
experience in the United States and more recently in Italy
suggests that a free broadcasting market does not produce
the same variety as the press and book publishing markets
do. However, the author states that these three
justifications for broadcasting regulation are inconclusive
and it is doubtful whether the case is powerful enough to
justify the radically different legal treatment of the press
and broadcasting media. A separate question, according to
the author, is whether it is appropriate to continue to
treat radio in the same way as television since there is
generally a large choice of local, if not national radio
programmes and it is hard to believe that it exercises a
dominating influence on the formation of public attitudes.
The same question arises In respect of cable television.
Although a licence has to be obtained from a licensinghttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 109
authority, several franchises may be physically accommodated
and a wide band cable system may be able to carry upto 30 or
40 or even more channels. The scarcity rational, therefore,
seems inapplicable to cable, and further it is hard to
believe that this mode of broadcasting exercises such a
strong influence that stringent programme regulation is
justifiable. Dealing with the last reason advocated by a
leading American scholar, Lee Bollinger in his article
"Freedom of the Press and Public Access" and his essay "The
Rational of Public Regulation of the Media" and in
"Democracy and the MassMedia" [Cambridge (1990)] for the
divergent treatment of the press and broadcasting media, the
author points out that Bollinger accepts that there is no
fundamental difference in the character of the two mass
media, but argues that broadcasting being still relatively
new means of mass communication, it is understandable that
society has wanted to regulate it just as it has treated the
cinema with more caution than it has the theater. This
argument of Bollinger is based on the history of the two
media. Bollinger’s second argument is that society is
entitled to remedy the deficiencies of an unregulated press
with a regulated broadcasting system which may be preferable
to attempting to regulate both sectors... According to
Bollinger, regulation poses the danger of Government control, a risk which is reduced if one branch of the media is
left free. The author attacks this reason given by
Bollinger and states that it is an unsatisfactory compromise. If the regulation of the press is al-
147
ways wrong and perhaps unconstitutional and if there is no
significant difference between the two media, it follows
that the latter should also be wholly unregulated. The
author also points out that Bollinger’s argument attempts to
justify the unequal treatment of the liberties of the
broadcasters and newspaper proprietors and editors when in
all material respects, their position is identical.
40. The author then refers to the rights of viewers and
listeners which is referred to in Red Lion Broadcasting
case [supra] by White, J. of the US Supreme Court in the
following words:
"But the people as a whole retain their
interest in free speech by radio and their
collective right to have the medium function
consistently with the ends and purposes of the
First Amendment. It is the right of viewers
and listeners, not the right of the
broadcasters, which is paramount".
41.The author concludes by pointing out that the cases from
a variety of jurisdictions show that the broadcasters
programme freedom when exercised within the constraints
imposed by the regulatory authority, has priority over the
rights claimed by viewers to see a particular programme or
to retain a particular series in the schedule. On the other
hand, the interests of viewers and listeners justify the
imposition of programme standards which would not be
countenanced for the press or publishing. It is recognised
by the constitutional courts of European countries that
viewers and listeners have interests, and they should be
taken into account in the interpretation’ of broadcasting
freedom. But the balancing of the rights of the
broadcasters and viewers is done by regulatory authority.
Courts are understandably reluctant to contemplate the
interference with administrative discretion which would
result from their recognition of individual rights.
42.Dealing with the right to access to broadcasting, thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 109
author points out that the theoretical argument in this
connection is that freedom of speech means freedom to
communicate effectively to a mass audience and nowadays that
entails access to the mass media. The rights to access
provide some compensation for the expropriation by the
public monopoly of the freedom to broadcast. In the absence
of a justification for that monopoly, there would be a right
to broadcast in the same way that everyone has a right to
say or write what he likes in his own home. This would
justify the recognition of access to both public and private
channels. The -author states that these arguments are
unacceptable. Freedom of speech does not entail any right
to communicate effectively in the sense that a citizen can
call upon the State to provide him with the most effective
means for the purpose. He points out that no legal system
provides its citizens with the means and opportunities to
address the Public in the way each considers most appropriate. Moreover, to grant everyone a right to use an
access channel, even if available all the time, would be to
give every adult a worthless right to use it for a second a
year. Limited access rights, enjoyed only by important
political and social groups may be more valuable. But even
their recognition would involve some interference with the
editorial freedom of channel controllers and programme
schedulers and it may be more difficult as a Consequence to
achieve a balanced range or programmes. Further, a channel
might find it hard to create any clear identity for
148
itself, if it had to devote a substantial amount of time to
relaying the programmes made by pressure groups. There are
also practical objections to access rights. It may be very
difficult to decide, for example, which groups are to be
given access, and when and how often such programmes are to
be shown. There is a danger that some groups will be
unduly privileged. These points weigh particularly heavily
against the recognition of constitutional rights, for courts
are not competent to formulate them with any precision.
Dealing with the constitutional rights of access to the
broadcasting media, the author concludes that individuals
and groups do not have constitutional rights of access to
the broadcasting media. Access rights can only be framed
effectively by legislature or by specialist administrative
agencies. It does not mean that statutory or other access
rights do not have a constitutional dimension. The courts
may lay down that some provisions should be made for access
as a matter of constitutional policy. This, however, does
not mean that there are individual constitutional rights to
access.
43. In this connection, the author also points out that the
development of cable poses new access problems. Operator of
the cable may himself have rights of free speech which would
be infringed by a requirement to honour access claims. The
scarcity and economic arguments which are employed to
justify broadcasting regulation and, therefore, access
provision, may be less applicable in the context of cable.
44. We may now summarise the law on the freedom of speech
and expression under Article 19 [1] (a) as restricted by
Article 19 [2]. The freedom of speech and expression
includes right to acquire information and to disseminate it.
Freedom of speech and expression is necessary, for self
expression which is an important means of free conscience
and self fulfillment. It enables people to contribute to
debates of social and moral issues. It is the best way to
find a truest model of anything, since it is only through
it, that the widest possible range of ideas can circulate.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 109
It is the only vehicle of political discourse so essential
to democracy. Equally important is the role it plays in
facilitating artistic and scholarly endeavours of all sorts.
The right to communicate, therefore, includes right to
communicate through any media that is available whether
print or electronic or audio-visual such as advertisement,
movie, article, speech etc. That is why freedom of speech
and expression includes freedom of the press. The freedom
of the press in terms includes right to circulate and also
to determine the volume of such circulation. This freedom
includes the freedom to communicate or circulate one’s
opinion without interference to as large a population in the
country as well as abroad as impossible to reach.
45. This fundamental right can be limited only by reasonable
restrictions under a law made for purpose mentioned in
Article 19 [2] of the Constitution.
46. The burden is on the authority to justify the
restrictions. Public order is not the same thing as public
safety and hence no restrictions can be placed on the right
to freedom of speech and expression on the ground that
public safety is endangered. Unlike in the American
Constitution, limitations on fundamental rights are specifically spelt out under Article 19 [2] of our Constitution.
Hence no restrictions can
149
be placed on the right to freedom of speech and expression
on grounds other than those specified under Article 19 [2].
47. What distinguishes the electronic media like they
television from the print media or other media is that it
has both audio and visual appeal and has a more pervasive
presence. It has a greater impact on the minds of the
viewers and is also more readily accessible to all including
children at home. Unlike the print media, however, there is
a built-in limitation on the use of electronic media because
the airwaves are a public property and hence are owned or
controlled by the Government or a central national authority
or they are not available on account of the scarcity, costs
and competition.
48. The next question to be answered in this connection is
whether there can be a monopoly in broadcasting/telecasting.
Broadcasting is a means of communication and, therefore, a
medium of speech and expression. Hence in a democratic
polity, neither any private individual, institution or
Organisation nor any Government or Government Organisation
can claim exclusive right over It. Our Constitution also
forbids monopoly either in the print or electronic media.
The monopoly permitted by our Constitution is only in
respect of carrying on a trade, business, industry or
service under Article 19 [6] to subserve the interests of
the general public. However, the monopoly in broadcasting
and telecasting is often claimed by the Government to
utilise the public resources in the form of the limited
frequencies available for the benefit of the society at
large. It is Justified by the Government to prevent the
concentration of the frequencies in the hands of the rich
few who can information to suit their interests and thus in
fact to control and manipulate public opinion in effect
smothering the right to freedom of speech and expression and
freedom of information of others. The claim to monopoly
made on this ground may, however, lose all its raison d’etre
if either any section of the society is unreasonably denied
an access to broadcasting or the Governmental agency claims
exclusive right to prepare and relay programmes. The ground
is further not available when those claiming an access
either do not make a demand on the limited frequencieshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 109
controlled by the Government or claim the frequency which is
not utilised and is available for transmission. The
Government sometimes claims monopoly also on the ground that
having regard to all pervasive presence and impact of the
electronic media, it may be utilised for purposes not
permitted by law and the damage done by private broadcasters
may be irreparable. There is much to be said in favour of
this view and it is for this reason that the regulatory
provisions including those for granting licences to private
broadcasting where it is permitted, are enacted. On the
other hand, if the Government is vested with an unbridled
discretion to grant or refuse to grant the license or access
to the media, the reason for creating monopoly will lose its
validity. For then it is the government which will be
enabled to effectively suppress the freedom of speech and
expression instead of protecting it and utilising the
licensing power strictly for the purposes for which it is
conferred. It is for this reason that in most of the
democratic countries an independent autonomous broadcasting
authority is created to control all aspects of the operation
of the electronic media. Such authority is represen-
150
tative of all sections of the society and is free from
control of the political and administrative executive of the
State.
49. In this country, unlike in the United States and some
European countries, there has been a monopoly of
broadcasting/telecasting in the Government. The Indian
Telegraph Act, 1885 [hereinafter referred to as the
"Telegraph Act"] creates this monopoly and vests the power
of regulating and licensing broadcasting in the Government.
Further, the Cinematograph Act, 1952 and the Rules made
thereunder empower the Government to pre-censor films.
However, the power given to the Government to license and to
pre-censor under the respective legislations has to be read
in the context of Article 19 [2] of the Constitution which
sets the parameters of reasonable restrictions which can be
placed on the right to freedom of speech and expression.
Needless to emphasise that the power to pre-censor films and
to grant licences for access to telecasting, has to be
exercised in conformity with the provisions of Article 19
[2]. It is in this context that we have to examine the
provisions of Section 4 [1] of the Telegraph Act and the
action of the MIB/DD in refusing access to telecast the
cricket matches in the present case.
50. The relevant Section 4 of the Telegraph Act reads as
follows:
"4.(1) Within India the Central Government
shall have the exclusive privilege of
establishing, maintaining and working tele-
graphs:
Provided that the Central Government may grant
a licence, on such conditions and in
consideration of such payments as it thinks
fit, to any person to establish, maintain or
work a telegraph within any part of India
Provided further that the Central Government
may, by rules made under this Act and
published in the Official Gazette, permit,
subject to such restrictions and conditions as
it thinks fit, the establishment, maintenance
and working -
(a) of wireless telegraphs on ships within
India territorial waters and on aircraft
within or above India or Indian territorialhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 109
waters and
(b) of telegraphs other than wireless
telegraph within any part of India.
(2) The Central Government may, by no-
tification in the Official Gazette, delegate
to the telegraph authority all or any of its
powers wider the first proviso to sub-section
(1).
The exercise by the telegraph authority of any
power so delegated shall be subject to such
restrictions and conditions the Central
Government may, by the notification, think fit
to impose."
51. Section 3 (1) of the Act defines
’telegraph’ as under:
"3. (1) "telegraph" means any appliance,
instrument, material or apparatus used or
capable of use for transmission or reception
of signs, signals, writing, images and sounds
or intelligence of any nature by wire, visual
or other electromagnetic emissions, Radio
waves Hertzian waves, galvanic, electric or
magnetic means.
Explanation.- "Radio waves" or "Hertzian
waves" means electromagnetic waves of
frequencies lower than 3,000 giga-cycles per
second propagated in
151
space without artificial guide."
52. It Is clear from a reading of the provisions of Sections
4 [1] and 3 [1] together that the Central Government has the
exclusive privilege of establishing, maintaining and working
appliances, instruments, material or apparatus used or
capable of use for transmission or reception of signs,
signals, images and sounds or intelligence of any nature by
wire, visual or other electromagnetic emissions, Radio wayes
or Hertzian waves, galvanic, electric or magnetic means.
Since in the present case the controversy centres round the
use of airwaves or hertzian waves [hereinafter will be
called as "electro-magnetic waves"], as is made clear by
Explanation to section 3(1), the Central Government can have
monopoly over the use of the electromagnetic waves only of
frequencies lower than 3000 giga-cycles per second which are
propagated in space with or without artificial guide. In
other words, if the electromagnetic waves of frequencies of
3000 or more giga-cycles per second are propagated in space
with or without artificial guide, or if the electro-magnetic
waves of frequencies of less than 3000 give-cycles per
second are propagated with an artificial guide, the Central
Government cannot claim an exclusive right to use them or
deny its user by others. Since no arguments were advanced
on this subject after the closure of the arguments and
pending the decision, we had directed the parties to give
their written submissions on the point. The submissions
sent by them disclosed a wide conflict which would have
necessitated further oral arguments. Since we are of the
view that the present matter can be decided without going
into the controversy on the subject, we keep the point open
for decision in an appropriate case. We will presume that
in the present case the dispute is with regard to the use of
electromagnetic waves of frequencies lower than 3000 gigacycles per second which are propagated in space without
artificial guide. 53. The first proviso to Section 4 (1)
states that the Central Government may grant licence on such
conditions and in consideration of such payment as it thinkshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 109
fit, to any person, to establish, maintain or work a
telegraph within any part of India. We are not concerned
here with the permission to establish or maintain a
telegraph because in the present case the permission is
sought only for operating a telegraph and that too for a
limited time and for a limited and specified purpose. The
purpose again is non-commercial. It is to relay the
specific number of cricket matches. It is only incidentally
that the CAB will earn some revenue by selling its right to
relay the matches organised by it. The CAB is obviously not
a business or a commercial organisation nor can it be said
that it is organising matches for earning profits as a
business proposition. As will be pointed out later, it is a
sporting Organisation devoted to the cause of cricket and
has been organising cricket matches both of internal and
international cricket teams for the benefit of the sport,
the cricketers, the sportsmen present and prospective and of
the viewers of the matches. The restrictions and conditions
that the Central Government is authorised to place under S.
4 [1] while permitting non-wireless telegraphing can, as
stated earlier, only be those which are warranted by the
purposes mentioned in Article 19 [2] and none else. It is
not and cannot be the case of the Government that by
granting the permission in question, the sovereignty and
integrity of India, the security of the State,
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friendly relations with foreign States, public order,
decency or morality or either of them will be in jeopardy or
that the permission will lead to the contempt of court,
defamation or incitement to an offence. On the other hand,
the arguments advanced are specious and with them we will
deal a little later.
54. It is then necessary to understand the nature of the
respondent Organisation, namely, CAB. It cannot be disputed
that the BCCI is a non-profit making Organisation which
controls officially organised game of cricket in India.
Similarly, Cricket Association of Bengal (CAB) is also nonprofit making Organisation which controls officially
organised game of cricket in the State of West Bengal. The
CAB is one of the Founder Members of BCCI. Office bearers
and Members of the Working Committees of both BCCI and CAB
are all citizens of India. The primary object of both the
organisations, amongst others, is to promote the game of
cricket, to foster the spirit of sportsmanship and the
ideals of cricket, and to impart education through the media
of cricket, and for achieving the said objects, to organise
and stage tournaments and matches either with the members of
International Cricket Council (ICC) or other organisations.
According to CAB, BCCI is perhaps the only sportsorganisation in India which cams foreign exchange and is
neither controlled by any Governmental agency nor receives
any financial assistance or grants, of whatsoever nature.
55. It cannot be disputed further that to arrange any
international cricket tournament or series. it is necessary
and a condition-precedent, to pay to the participating
member countries or teams, a minimum guaranteed amount in
foreign exchange and to bear expenses incurred for
travelling, boarding, lodging and other daily expenses for
the participating cricketeers and the concerned accompanying
visiting officials. A huge amount of expenses has also to
be incurred for organising the matches. In addition, both
BCCI and CAB annually incur large amount of expenses for
giving subsidies and grants to its members to maintain, develop and upgrade the infrastructure, to coach and train
players and umpires, and to pay to them when the series andhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 109
matches are played.
56.Against this background, we may now examine the questions
of law raised by the parties. The contention of the Ministry of Information and Broadcasting (MIB) is that there is
a difference between the implications of the right conferred
under Article 19 [1] (a) upon [i] the broadcaster i.e. the
person operating the media, [ii] the person desiring access
to the media to project his views including the organiser of
an event, [iii] the viewer and [iv] a person seeking
uplinking of frequencies so as to telecast signals generated
in India to other countries. The contention of CAB that
denial of a license to telecast through a media of its
choice, based [according to NM] upon the commercial
interests, infringes viewers’ right under Article 19 [1] (a)
is untenable. It is further contended that the commercial
interests of the organizer are not protected by Article 19
[1] (a). However, the contention of the CAB results
indirectly in such protection being sought by resort to the
following steps of reasoning : [a] the, Board has a right to
commercially exploit the event to the maximum, [b] the
viewer has a right to access to the event through
153
the television. Hence the Board has the right to telecast
through an appropriate channel and also the right to insist,
that a private agency including a foreign agency, should be
allowed all the sanctions and permissions as may be
necessary therefor.
57.According to NUB the aforesaid contention is untenable
because even if it is assumed that entertainment is a part
of free speech, the analogy of the right of the press under
Article 19 [1] (a) vis-a-vis the right under Article 19 [1]
(g), cannot be extended to the right of sports associations.
The basic premise underlying the recognition of the rights
of the press under Article 19 [1] (a) is that the economic
strength is vitally necessary to ensure independence of the
press, and thus even the ’business’ elements of a newspaper
have ’to some extent a ’free speech’ protection. In other
words the commercial element of the press exists to subserve
the basic object of the press, namely, free dissemination of
news and views which enjoys the protection of free speech.
However, free speech element in telecast of sports is
incidental. According to the MIB, the primary object of the
telecast by the CAB is to raise funds and hence the activities are essentially of trade. The fact that the
profits are deployed for promotion of sports is immaterial
for the purpose.
58. It is further urged that a broadcaster does not have a
right as such to access to the airwaves without a license
either for the purposes of telecast or for the purposes of
uplinking. Secondly, there is no general right to a license
to use airwaves which being a scarce resource, have to be
used in a manner that the interests of the largest number
are best served. The paramount interest is that of the
viewers. The grant of a license does not confer any
special right inasmuch as the refusal of a license does not
result in the denial of a right to free speech. Lastly, the
nature of the electronic media is such that it necessarily
involves the marshaling of the resources for the largest
public good. The state monopoly created as a device, to use
the resource is not per se violative of the right of free
speech as long as the paramount interests of the viewers are
subserved and access to the media is governed by the
fairness doctrine. According to the MIB, the width of the
rights under Article 19 [1] (a) has never been considered to
be wider than that conferred by the First Amendment to thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 109
U.S. Constitution. It is also urged that the licensing of
frequencies and consequent regulation of telecast/broadcast
would not be a matter covered by Article 19 [2]. The-right
to telecast/broadcast has certain inherent limitations
imposed by nature, whereas Article 19(2) applies to
restrictions imposed by the State. The object of licensing
is not to cast restrictions on the expression of ideas, but
to regulate and Marshall scarce resources to ensure their
optimum enjoyment by all including those who are not
affluent enough to dominate the media.
59.It is next urged that the rights of an organiser to use
airwaves as a medium to telecast and thereby propagate his
views, are distinct from his right to commercially exploit
the event. Although it is conceded that an organiser cannot
be denied access on impermissible grounds, it is urged that
he cannot further claim a right to use an agency of his
choice as a part of his right of free speech. In any event
no person can claim to exercise his right under Article 19
[1] (a) in a manner which makes it a device for a noncitizen
154
to assert rights which are denied by the Constitution.
According to MIB, it is the case of the BCCI that to promote
its commercial interest, it is entitled to demand that the
Government grants all the necessary licenses and permissions
to any foreign agency of its choice and a refusal to do so
would violate Article 19 [1] (a). According to MIB, this is
an indirect method to seek protection of Article 19 [1] (a)
to the non-citizens.
60. It is then contended that a free speech right of a
viewer has been recognised as that having a paramount importance by the US Supreme Court and this view is all the
more significant in a country like ours. While accepting
that the electronic media is undoubtedly the most powerful
media of communication both from the perspective of its
reach as well as its impact, transcending all barriers including that of illiteracy, it is contended that it is very
cost-intensive. Unless, therefore, the rights of the
viewers are given primacy, it will in practice result in the
affluent having the sole right to air their views completely
eroding the right of the viewers. The right of viewer can
only be safeguarded by the regulatory agency by controlling
the frequencies of broadcast as it is otherwise impossible
for viewers to exercise their right to free speech qua the
electronic media in any meaningful way.
61.Lastly, dealing with the contention raised on behalf of
the CAB and BCCI that the monopoly conferred upon DD is
violative of Article 19 [1] (a), while objecting to the
contention on the ground that the issue does not arise in
the present proceedings and is not raised in the pleadings,
it is submitted on behalf of NM that the principal
contentions of the CAB/BCCI are that they are entitled to
market their right to telecast event at the highest possible
value it may command and if the DD is unwilling to pay as
much as the highest bidder, the CAB/BCCI has the right not
only to market the event but to demand as of right, all the
necessary licences and permissions for the agency including
foreign agency which has purchased its rights. According to
MIB these contentions do not raise any free-speech issues,
but impinge purely on the right to trade. As far as Article
19 [1] (g) is concerned, the validity of the monopoly in
favour of the Government is beyond question. Secondly, in
the present case, the DD did not refuse to telecast the
event per se. It is then submitted that the CAB/BCCI are
not telecasters. They arc only organisers of the eventshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 109
sought to be telecast and when the agency like DD which has
access to the largest number of viewers agrees to telecast
the events, their right as well as the viewers’ right under
Article 19 [1] (a) is satisfied. No organiser, it is
contended, can insist that his event be telecast on terms
dictated by him and refusal to agree to his term
constitutes, breach of his right under Article 19 [1] (a).
If it is accepted that the Government has not only the,
right but the duty to regulate the distribution of
frequencies, then the only way it can be done is by creating
a monopoly. A mere creation of the monopoly-agency to telecast does not per se violate Article 19 [1] (a) as long as
the access is not denied to the media either absolutely or
by imposition of terms which are unreasonable. Article 19
[1] (a) proscribes monopoly in ideas and as long as this is
not done, the mere -fact that the access to the media is
through the Government-controlled agency, is not per se
violative of Article 19 [1] (a).
155
It is further urged that no material has been placed before
the Court to show that the functioning of the DD is such as
to deny generally, an access to the media and the control
exercised by the Government is in substance over the content
on the grounds other than those specified in Article 19 [2]
or a general permission to all who seek frequencies to
telecast, would better subserve the principle underlying
Article 19 [1] (a) in the socioeconomic scenario of this
country and will not result in passing the control of the
media from the Government to private agencies affluent
enough to buy access.
62. As against these contentions of the MIB, it is urged on
behalf of CAB and BCCI as follows:
The right to organise a sports event inheres in the entity
to which the right belongs and that entity in this case is
the BCCI and its members which include the CAB. The right
to produce event includes the right to deal with such event
in all manner and mode which the entity chooses. This
includes the right to telecast or not to telecast the event,
and by or through whom, and on what terms and conditions.
No other entity, not even a department of the Government can
coerce or influence this decision or obstruct the same
except on reasonable grounds mentioned under Article 19 [2]
of the Constitution. In the event the entity chooses to
televise its own events, the terms and conditions for
televising such events are to be negotiated by it with any
party with whom it wishes to negotiate. There is no law,
bye-law, rule or regulation to regulate the conduct of the
BCCI or CAB in this behalf. In the event. BCCI chooses to
enter into an agreement with an agency having necessary
expertise and infrastructure to produce signals, and
transmit and televise the event of the quality that BCCI/CAB
desires, the terms and conditions to be negotiated with such
an entity, are the exclusive privilege of BCCI/CAB. No
department of the Government and least of all, the MIB or DD
is concerned with the same and can deny the BCCI or CAB
same, the benefit of such right or claim, much less can the
MIB or DD can insist that such negotiation and finalisation
only be done with it or not otherwise.
63. In the event the BCCI or CAB wishes to have the event
televised outside India, What is required is that the
required cameras and equipments in the field send signals to
the earth station which in turn transmits the same to the
appointed satellite. From the satellite, the picture is
beamed back which can be viewed live by any person who has a
TV set and has appropriate access to receive footprintshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 109
within the beaming zone. In such case DD or the Ministry of
Communications is not to provide any assistance either in
the form of equipments or personnel or for that matter, in
granting uplinking facility for televising the event.
64. It is further that the right to disseminate information
is a part of the fundamental right to freedom of expression.
BCCI/CAB have the fundamental right to televise the game of
cricket organised and conducted by them for the benefit of
public at large and in particular citizens of India who are
either interested in cricket or desire to be educated and/or
entertained. The said right is subject only to the
regulations and restrictions as provided by Article 19(2) of
the Constitution.
65. 65. At no other stage either the DD or
156
MIB stated that reasonable restrictions as enumerated in
Article 19 [2] arc being sought to be imposed apart from the
fact that such plea could not have been taken by them in the
case of telecasting sports events like cricket matches. It
is urged that the sole ground on which DD/MIB is seeking to
obstruct and/or refuse the said fundamental right is that
the DD has the exclusive privilege and monopoly to broadcast
such an event and that unless the event is produced,
transmitted and telecast either by DD itself or in
collaboration with it on its own terms and conditions and
after taking signal from it on the terms and conditions it
may impose, the event cannot be permitted to be produced,
transmitted and telecast at all by anybody else.
66. It is also urged that there is no exclusive privilege
or monopoly in relation to production, transmission or telecasting and such an exclusivity or monopoly, if claimed , is
violative of Article 19 [1] (a).
67 The BCCI and CAB have a right under Article 19 [1] (a)
to produce, transmit, telecast and broadcast their event
directly or through its agent. The right to circulate
information is a part of the right guaranteed under Article
19 [1] (a). Even otherwise, the viewers and persons interested in sports by way of education, information, record and
entertainment have a right to such information, knowledge
and entertainment. The content of the right under Article
19 [1] (a) reaches out to protect the information of the
viewers also. In the present case, there is a right of the
viewers and also the right of the producer to telecast the
event and in view of these two rights, there is an
obligation on the part of the Department of Telecommunication to allow the telecasting of the event.
68. It is then contended that the grant of a licence under
section 4 of the Act is a regulatory measure and does not
entitle MIB either to deny a license to BCCI/ CAB for the
purposes of production, transmission and telecasting sports
events or to impose any condition unrelated to Article 19
[2]. If such denial or imposition is made, it would amount
to a prohibition. Hence the NM is obliged and dutybound in
law to grant licence against payment of fees related to and
calculated on the basis of user of time only, as has been
standardized and not otherwise. Any other method applied by
MIB/DD would be violative of Article 19 [1] (a). The grant
of license under section 4 of the Act has thus to be
harmoniously read with the right of the citizen under
Article 19 [1] (a). The Constitution does not visualize any
monopoly in Article 19 [1] (a). Hence DD cannot claim the
same nor can the commercial interest of DD or claim of
exclusivity by it of generation of signals be a ground for
declining permission under section 4 of the Act. Hence the
following restrictions sought to be imposed fall outside thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 109
ambit of Article 19(2) and are unconstitutional. The
restrictions are:
(a) That unless BCCI or CAB televises the
matches in collaboration with DD, a license
shall not be granted.
(b) The DD alone will be the host broad-
caster of the signals and BCCI/CAB or its
agency must take the signal from DD alone and
(c) Unless the BCCI or CAB accepts
157
the terms and conditions imposed by DD, the
production of signal and transmission and
telecast thereof shall not be permitted.
69. It is further contended that there is no monopoly in
relation to what viewer must today view and the American
decisions relied upon on behalf of MIB have no bearing on
the present state of affairs. Satellite can beam directly
on to television sets through dish antenna, all programmes
whose footprints are receivable in the country. Further,
any one can record a programme in India and then telecast it
by sending the cassette out as is being done in the case of
several private TV channels. Various foreign news organizations such as the BBC and the CNN record directly Indian
events and then transmit their own signals after a while to
be telecast by their organizations.
70. Further, the non-availability of channel is of no
consequence in the present days of technological
development. Any person intending to telecast/broadcast an
event can do so directly even without routing signal through
the channels of DD or MIB. What is required to ensure is
that the secured channel are not interfered with or
overlapped. On account of the availability of innumerable
satellites in the Geo-Stationary Orbit of the Hemisphere,
the signals can directly be uplinked through any of the
available transponders of satellite whose footprints can be
received back through appropriate electronic device. As a
matter of fact, beaming zone of only 3 satellites parked
3000 Kms. above the surface of the earth can cover the
entire Hemisphere. Moreover, due to technological
developments, frequency is becoming thinner and thinner and
as a result, availability of frequencies has increased
enormously and at present there are millions of frequencies
available. In order to ensure that none of the footprints
of any satellite overlaps the footprint of other satellite,
each and every satellite is parked at a different degree and
angle. Hence, there is no resource crunch or in-built
restriction on the availability of electronic media, as contended by MIB. In this connection it is also pointed out
that there is a difference in the right spelt out by Article
19 [1] (a) of our Constitution and that spelt out by the
First Amendment of the American Constitution.
71. It is also contended that in no other country the
right to televise or broadcast is in the exclusive domain of
any particular body. In this connection, a reference is
made to various instances in other countries where the host
broadcaster has been other than the domestic network, which
instances are not controverted. It is also urged that there
is no policy of the Government of India as urged on behalf
of the MIB that telecasting of sporting events would be
within the exclusive domain and purview of DD/MIB who alone
would market their rights to other authorities in whole or
in part. It is pointed out that the extract from the
minutes of the meeting of the Committee of Secretaries held
on 12th November, 1993 relied upon by the MIB for the
purpose is not a proof of such policy. The said minutes arehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 109
’executive decision’ of a few Secretaries of the various
departments of the Government.
72.It is also urged that even public interest or interest of
general public cannot be a ground for refusal or for the
imposition of restrictions or for claiming exclusivity in
any manner whatsoever.
158
Such restriction, if imposed will be violative of Article 19
[1] (a). To suggest that power to grant a license shall not
be exercised under any circumstances because of the policy
of the Government, is arbitrary inasmuch as the power
conferred is not being used for the purpose for which it has
been conferred.
73.It is then contended that both BCCI and CAB are nonprofit making organizations and their sole object is to
promote the game of cricket in this country and for that
purpose not only proper and adequate infrastructures are
required to be erected, built and maintained, but also huge
expenses have to be incurred to improve the game which
includes, amongst others, grant of subsidies and grants to
the Member Associations, upgradation of infrastructure,
training of cricketeers from school level, payments to the
cricketeers, insurance and benevolent funds for the
cricketeers, training of umpires, payments of foreign
participants, including guarantee money etc. The quantum of
amount to be spent for all these purposes has increased
during the course of time. These expenses are met from the
amounts earned by the BCCI and CAB since they have no other
continuous source of income. The earnings of BCCI and CAB
are basically from arranging various tournaments, instadia
advertisements and licence fee for permitting telecast and
censorship. At least 70 per cent of the income earned
through the advertisements and generated by the TV network
while telecasting of the matches, is paid to the organizer
apart from the minimum guaranteed money as is apparent from
the various agreements entered by and between BCCI/CAB as
well as by DD with. other networks. The DD in effect
desires to snatch away the right of telecast for its own
commercial interest through advertisement, and at the same
time also demand money from the organizers as and by way of
production fee.
74.Merely because an organization may cam profit from an
activity whose character is predominantly covered under
Article 19 [1] (a), it would not convert the activity into
one involving Article 19 [1] (g). The test of predominant
character of the activity has to be applied. It has also to
be ascertained as to who is the person who is utilizing the
activity. If a businessman were to put in an advertisement
for simpliciter commercial activity, it may render the
activity, the one, covered by Article 19 [1] (g). But even
newspapers or a film telecast or sports event telecast will
be protected by Article 19 [1] (a) and will not become an
activity under Article 19 [1] (g) merely because it earns
money from advertisements in the process. Similarly, if the
cricket match is telecast and profit is earned by the
licensing of telecasting right and receipts from
advertisements, it will be an essential element for
utilization and fulfillment of its object. The said object
cannot be achieved without such revenue.
75.Rebutting the argument that the Organisation of sports is
an industry and, therefore, monopoly under Article 19 [6] is
permissible, it is pointed out that even if, in matters
relating to business and profession, the State can create
monopoly under Article 19 [6], it can still not infringe
Article 19 [1] (a). While the State may monopolise thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 109
textile industry, it cannot prohibit the publication of
books and articles on textiles.
76.It is also contended that the exercise of right claimed
in the present case is
159
by BCCI/CAB and its office bearers who are citizens of
India. Merely because foreign equipment and technical and
personnel are used as collaborators to exercise the said
right more effectively, it does not dilute the content of
Article 19 [1] (a) nor does it become an exercise of right
by a non-citizens. In this connection, it is emphasised
that the DD is also using Worldtel, a foreign agency. Most
of the newspapers in India are printed on machines imported
from abroad. A newspaper may also have a foreigner as its
manager. However, that does not take away the right of the
newspaper under Article 19 [1] (a). They are only instances
of technical collaboration. Apart from it, every citizen
has a right to information as the same cannot be taken away
on grounds urged by the NEB.
77.It will be apparent from the contentions advanced on
behalf of MIB that their main thrust is that the right
claimed by the BCCI/CAB is not the right of freedom of
speech under Article 19 [1] (a), but a commercial right or
the right to trade under Article 19 [1] (g). The contention
is based mainly on two grounds viz., there is no free speech
element in the telecast of sports and secondly, the primary
object of the BCCI/CAB in seeking to telecast the cricket
matches is not to educate and entertain the viewer but to
make money.
78.It can hardly be denied that sport is an expression of
self In an athletic Nor individual event, the individual
expresses himself through his individual feat. In a team
event such as cricket, football, hockey etc., there is both
individual and collective expression. It may be true that
what is protected by Article 19 [1] (a) is an expression of
thought and feeling and not of the physical or intellectual
prowess or skill. It is also true that a person desiring to
telecast sports events when he is not himself a participant
in the game, does not seek to exercise his right of self
expression. However, the right to freedom of speech and
expression also includes the right to educate, to inform and
to entertain and also the right to be educated, informed and
entertained. The former is the right of the telecaster and
the latter that of the viewers. The right to telecast
sporting event will therefore also include the right to educate and inform the present and the prospective sportsmen
interested in the particular game and also to inform and
entertain the lovers of the game. Hence, when a telecaster
desires to telecast a sporting event, it is incorrect to say
that the free speech element is absent from his right. The
degree of the element will depend upon the character of the
telecaster who claims the right. An organiser such as the
BCCI or CAB in the present case which are indisputably
devoted to the promotion of the game of cricket, cannot be
place in the same scale as the business organisations whose
only intention is to make as large a profit as can be made
by telecasting the game. Whereas it can be said that there
is hardly any free speech element in the right to telecast
when it is asserted by the latter, it will be a warped and
cussed view to take when the former claim the same right,
and contend that in claiming the right to telecast the
cricket matches organised by them, they are asserting the
right to make business out of it. The sporting
organisations such as BCCI/ CAB which are interested in
promoting the sport or sports are under an obligation tohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 109
organise the sports events and can legitimately be accused
of failing in their
160
duty to do so. The promotion of Sports also includes its
popularization through all legitimate means. For this
purpose, they are duty bound to select the best means and
methods to reach the maximum number of listeners and
viewers. Since at present, radio and TV are the most
efficacious methods, thanks to the technological
development, the sports organisations like BCCI/CAB will be
neglecting their duty in not exploring the said media and in
not employing the best means available to them to popularise
the game. That while pursuing their objective of
popularising the sports by selecting the best available
means of doing so, they incidentally earn some revenue, will
not convert either them into commercial organisations or the
right claimed by them to explore the said means, into a
commercial right or interest. It must further be remembered
that sporting organisations such as BCCI/CAB in the present
case, have not been established only to organise the sports
events or to broadcast or telecast them. The organisation
of sporting events is only a part of their various objects,
as pointed out earlier and even when they organise the
events, they are primarily to educate the sportsmen, to
promote and popularise the sports and also to inform and
entertain the viewers. The Organisation of such events
involves huge costs. Whatever surplus is left after
defraying all the expenses, is ploughed back by them in the
Organisation itself It will be taking a deliberately distorted view of the right claimed by such organisations to
telecast the sporting event to call it an assertion of a
commercial right. Yet the MIB has chosen to advance such
contention which can only be described as most unfortunate.
It is needless to state that we are, in the circumstances,
unable to accept the ill-advised argument. It does no
credit to the Ministry or to the Government as a whole to
denigrate the sporting organisations such as BCCI/CAB by
placing them on par with business organisations sponsoring
sporting events for profit and the access claimed by them to
telecasting as assertion of commercial interest.
79.The second contention of NM is based upon the
propositions laid down by the US Supreme Court, viz., there
are inherent limitations imposed on the right to
telecast/broadcast as there is scarcity of resources, i.e.
of frequencies, and therefore the need to use them in the
interest of the largest number. There is also a pervasive
presence of electronic media such as TV. It has a greater
impact on the minds of the people of all ages and strata of
the society necessitating the prerequisite of licensing of
the programmes. It is also contended on that account that
the licensing of frequencies and consequent regulation of
telecasting/broadcasting would not be a matter governed by
Article 19 [2]. Whereas Article 19 [2] applies to restrictions imposed by the State, the inherent limitations on the
right to telecast/broadcast are imposed by nature.
80.In the first instance, it must be remembered that all the
decisions of the US Supreme Court relied upon in support of
this contention, are on the right of the private
broadcasters to establish their own broadcasting stations by
claiming a share in or access to the airwaves or frequencies. In the United States, there is no Central Governmentowned or controlled broadcasting centre. There is only a
Federal Commission to regulate broadcasting stations which
are all owned by private broadcasters. Secondly, the
American Con-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 109
161
stitution does not explicitly state the restrictions on the
right of freedom of speech and expression as our
Constitution does. Hence, the decisions in question have
done no more than impliedly reading such restrictions. The
decisions of the U.S. Supreme Court, therefore, in the
context of the right claimed by the private broadcasters are
irrelevant for our present purpose. In the present case,
what is claimed is a right to an access to telecasting
specific events for a limited duration and during limited
hours of the day. There is no demand for owning or
controlling a frequency. Secondly, unlike in the cases in
the US which came for consideration before the US Supreme
Court, the right to share in the frequency is not claimed
without a license. Thirdly, the right to use a frequency
for a limited duration is not claimed by a business
Organisation to make profit and lastly and this is an
important aspect of the present case, to which no reply has
been given by the MIB, there is no claim to any frequency
owned and controlled by the Government. What is claimed is
a permission to uplink the signal created by the organiser
of the events to a foreign satellite.
81. There is no doubt that since the airwaves/frequencies
are a public property and are also limited, they have to
be used in the best interest of the society and this can be
done either by a central authority by establishing its own
broadcasting network or regulating the grant of licences to
other agencies, including the private agencies. What is
further, the electronic media is the most powerful media
both because of its audio-visual impact, and its widest
reach covering the section of the society where the print
media does not reach. The right to use the airwaves and the
content of the programmes therefore, needs regulation for
balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing
from the concentration of the right to broadcast/telecast in
the hands either of a central agency or of few private
affluent broadcasters. That is why the need to have a
central agency representative of all sections of the society
free from control both of the Government and the dominant
influential sections of the society. This is not disputed.
But to contend that on that account the restrictions to be
imposed on the right under Article 19 [1] (a) should be in
addition to those permissible under Article 19 [2] and
dictated by the use of public resources in the best
interests of the society at large, is to misconceive both
the content of the freedom of speech and expression and the
problems posed by the element of public property in, and the
alleged scarcity of, the frequencies as well as by the wider
reach of the media. If the right to freedom of speech and
expression includes the right to disseminate information to
as wide a section of the population as is possible, the
access which enables the right to be so exercised is also an
integral part of the said right. The wider range of
circulation of information or its greater impact cannot
restrict the content of the right nor can it justify its
denial. The virtues of the electronic media cannot become
its enemies. It may warrant a greater regulation over
licensing and control and vigilance on the content of the
programme telecast. However, this control can only be
exercised within the framework of Article 19 [2] and the
dictates of public interests. To plead for other grounds is
to plead for unconstitutional measures. It is further
difficult to appreciate such contention on the
162http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 109
part of the Government in this country when they have a
complete control over the frequencies and the content of the
programme to be telecast. They control the sole agency of
telecasting. They are also armed with the provisions of
Article 19 [2] and the powers of pre-censorship under the
Cinematograph Act and Rules. The only limitations on the
said right is, therefore, the limitation of resources and,
the need to use them for the benefit of all. When, however,
there are surplus or unlimited resources and the public
interests so demand or in any case do not prevent
telecasting, the validity of the argument based on
limitation of resources disappears. It is true that to own
a frequency for the purposes of broadcasting is a costly
affair and even when there are surplus or unlimited
frequencies, only the affluent few will own them and will be
in a position to use it to subserve their own interest by
manipulating news and views. That also poses a danger to
the freedom of speech and expression of the have-nots by
denying them the truthful information on all sides of an
issue which is so necessary to form a sound view on any
subject, That is why the doctrine of fairness which is
evolved in the U.S. in the context of the private
broadcasters licensed to share the limited frequencies with
the central agency like the FCC to regulate the programming.
But this phenomenon occurs even in the case of the print
media of all the countries. Hence the body like the Press
Council of India which is empowered to enforce, however
imperfectly, the right to reply. The print media further
enjoys as in our country, freedom from pre-censorship unlike
the electronic media.
82.As -stated earlier, we are not concerned in the present
case with the right of the private broadcasters, but only
with the limited right for telecasting particular cricket
matches for particular hours of the day and for a particular
period. It is not suggested that the said right is
objectionable on any of the grounds mentioned in Article 19
[2] or is against the proper use of the public resources.
The only objection taken against the refusal to grant the
said right is that of the limited resources. That objection
is completely misplaced in the present case since the claim
is not made on any of the frequencies owned, controlled and
utilised by the D.D. The right claimed is for uplinking the
signal generated by the BCCI/CAB to a satellite owned by
another agency. The objection, therefore, is devoid of any
merit and untenable in law. It also displays a deliberate
obdurate approach.
83.The third contention advanced on behalf of the MIB is
only an extended aspect of the fist contention. It is based
on the same distorted interpretation of the right claimed.
It proceeds on the footing that the BCCI/CAB is claiming a
commercial right to exploit the sporting event when they
assert that they have a right to telecast the event through
an agency of their choice. It is even contended on behalf
of the MIB that this amounts to a device for a non-citizen
to assert rights under Article 19 [1] .(a) which are not
available to him.
84.It is unnecessary to repeat what we have stated while
dealing with the first contention earlier, with regard to
the character of BCCI/CAB, the nature of and the purpose for
which the right to access to telecast is claimed by them.
As pointed out, it is not possible to hold that what the
BCCI/CAB are in the present cast claiming is a commercial
right to exploit the
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event unless one takes a perverse view of the matter. Thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 109
extent of perversity is apparent from the contention raised
by them that to engage a foreign agency for the purpose is
to make it a device for a noncitizen to assert his rights
under Article 19 [1] (a). It cannot be denied that the
right to freedom of speech and expression under Article 19
[1] (a) includes the right to disseminate information by the
best possible method through an agency of one’s choice so
long as the engagement of such agency is not in
contravention of Article 19 [2] of the Constitution and does
not amount to improper or unwarranted use of the
frequencies. Hence the choice of BCCI/ CAB of a foreign
agency to telecast the matches, cannot be objected to.
There is no suggestion in the present case that the
engagement of the foreign agency by the BCCI/CAB is
violative of the provisions of Article 19 [2]. On the other
hand, the case of NUB, as pointed out earlier, is that the
BCCI/CAB want to engage the foreign agency to maximise its
revenue and hence they are not exercising their right under
Article 19 [1] (a) but their commercial right under Article
19 [1] (g). We have pointed out that that argument is not
factually correct and what in fact the BCCI/CAB is asserting
is a right under Article 19 [1] (a). While asserting the
said right, it is incidentally going to earn some revenue.
In the circumstances, it has the right to choose the best
method to earn the maximum revenue possible. In fact, it
can be accused of negligence and may be attributed
improper motives, if it fails to explore the most profitable
avenue of telecasting the event, when in any case, in
achieving the object of promoting and popularising the
sports, it has to endeavour to telecast the cricket matches.
The record shows that all applications were made and
purported to have been made to the various agencies on
behalf of CAB for the necessary licences and permissions.
All other Ministries and Departments understood them as such
and granted the necessary permissions and licences. Hence,
by granting such permission, the Government was not in fact
granting permission to the foreign agency to exercise its
right under Article 19 [1] (a). If, further, that was the
only objection in granting permission, a positive approach
on the part of the NM could have made it clear in the
permission granted that it was being given to CAB. In fact,
when all other Government Departments had no difficulty in
construing the application to that effect and granting the
necessary sanctions/permissions at their end, it is
difficult to understand the position taken by the MIB in
that behalf. One wishes that such a contention was not advanced.
85.The fourth contention is that, as held by the US Supreme
Court, the freedom of speech has to be viewed also as a
right of the viewers which has a paramount importance, and
the said View has significance in a country like ours. To
safeguard the rights of the viewers in this country, it is
necessary to regulate and restrict the right to access to
telecasting. There cannot be any dispute with this
proposition. We have in fact referred to this right of the
viewers in another context earlier. True democracy cannot
exist unless all citizens have a right to participate in
the affairs of the polity of the country. The right to
participate in the affairs of the country is meaningless
unless the citizens are well informed on all sides of the
issues, in respect of which they are called upon to express
their views. One-sided information, disinformation,
misinformation and non-information all
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a farce when medium of information is monopolised either by
a partisan central authority or by private individuals or
oligarchic organisations. This is particularly so in a
country like ours where about 65 per cent of the population
is illiterate and hardly 1-1/2 per cent of the population
has an access to the print media which is not subject to
precensorship. When, therefore, the electronic media is
controlled by one central agency or few private agencies of
the rich, there is a need to have a central agency, as
stated earlier, representing all sections of the society.
Hence to have a representative central agency to ensure the
viewers’ right to be informed adequately and truthfully is a
part of the right of the viewers under Article 19 [1] (a).
We are, however, unable to appreciate this contention in the
present context since the viewers’ rights are not at all
affected by the BCCI/CAB, by claiming a right to telecast
the cricket matches, On the other hand, the facts on record
show that their rights would very much be trampled if the
cricket matches are not telecast through the D.D., which has
the monopoly of the national telecasting network. Although,
there is no statistical data available [and this is not a
deficiency felt only in this arena], it cannot be denied
that a vast section of the people in this country is
interested in viewing the cricket matches. The game of
cricket is by far the most popular In all parts of the
country. This is evident from the over-flowing stadia at
the venues wherever the matches are played and they are
played all over the country. It will not be an exaggeration
to say that at least one in three persons, if not more, is
interested in viewing the cricket matches. Almost all
television sets are switched on to view the matches. Those
who do not have a T.V. set of their own, crowd around T.V.
sets of others when the matches are on. This is not to
mention the number of transistors and radios which are on
during the match-hours. In the face of these revealing
facts, it is difficult to understand why the present
contention with regard to the viewers’ right is raised in
this case when the grant of access to BCCI/CAB to telecast
cricket matches was in the interest of the viewers and would
have also contributed to promote their rights as well.
86.The last argument on behalf of the MIB is that since in
the present case, the DD has not refused to telecast the
event, its monopoly to telecast cannot be challenged and in
fact no such contention was raised by the BCCI/CAB. We are
afraid that this will not be a proper reading of the
contentions raised by BCCI/CAB in their pleadings both
before the High Court and this Court. Undisputed facts on
record show that the DD claimed exclusive right to create
host broadcasting signal and to telecast it on the terms and
conditions stipulated by it or not at all. MIB even refused
to grant uplinking facilities when the terrestrial signal
was being created by the CAB with their own apparatus, i.e.,
the apparatus of the agency which they had engaged and when
the use of any of the frequencies owned, controlled or
commanded by DD or the Government, was not involved. Since
BCCI/CAB were the organisers of the events, they had every
right to create terrestrial signals of their event and to
sell it to whomsoever they thought best so long as such
creation of the signal and the sale thereof was not
violative of any law made under Article 19 [2] and was not
an abuse of the frequencies which are a public property.
Neither DD nor any other agency could im-
165
pose their terms for creating signal or for telecasting them
unless it was sought through their frequencies. When the DDhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 109
refused to telecast cricket matches except on their terms,
the BCCI/CAB turned to another agency, in the present case a
foreign agency, for creating the terrestrial signal and
telecasting it through the frequencies belonging to that
agency. When the DD refused to telecast the matches, the
rights of the viewers to view the matches were in jeopardy.
Only the viewers in this country who could receive foreign
frequencies on their TV sets, could have viewed the said
matches. Hence it is not correct to say that the DD had not
refused to telecast the events. To insist on telecasting
events only on one’s unreasonable terms and conditions and
not otherwise when one has the monopoly of telecasting, is
nothing but refusal to telecast the same. The DD could not
do it except for reasons of non-availability of frequencies
or for grounds available under Article 19(2) of the
Constitution or for considerations of public interest involved in the use of the frequencies as public property.
The fact that the DD was prepared to telecast the events
only on its terms shows that the frequency was available.
Hence, scarcity of frequencies or public interests cannot be
pressed as grounds for refusing to telecast or denying
access to BCCl/CAB to telecasting. Nor can the DD plead
encroachment on the right of viewers as a ground since the
telecasting of events on the terms of the DD cannot alone be
said to safeguard the right of viewers in such a case and in
fact it was not so.
87.Coming to the facts of the present case, which have given
rise to the present proceedings, the version of MIB is as
follows:
On March 15, 1993, the CAB wrote a letter to the Director
General of Doordarshan that a Six-Nation International
Cricket Tournament will be held in November, 1993 as a part
of its Diamond Jubilee Celebrations and asked DD to send a
detailed offer for any of the two alternatives, namely, (i)
that DD would create ’Host Broadcaster Signal’ and also
undertake live telecast of all the matches in the tournament
or (ii) any other party may create the ’Host Broadcaster
Signal’ and DD would only purchase the rights to telecast in
India. CAB in particular emphasised that in either case,
the foreign T.V. rights would be with CAB. The CAB also
asked DD to indicate the royalty amount that would be paid
by the DD. On March 18, 1993 the Controller of Programmes
(Sports), DD, replied to the letter stating amongst other
things that during the meeting and during the telephonic
conversation, CAB’s President Dalmia had agreed to send them
in writing the amount that he expected as rights fee payable
to CAB exclusively for India, without the Star TV getting
it. On March 19, 1993, CAB informed DD that they would be
agreeable to DD creating the Host Broadcaster Signal and
also granting DD exclusive right for India without the Star
TV getting it and the CAB would charge DD US $800,000 (US
Dollars eight lakh] only] for the same. The CAB, however,
made it clear that they would reserve the right to sell/license the right world-wide, excluding India and Star TV.
The CAB also stated that DD would be under an obligation to
provide a picture and commentary subject to payment of DD’s
technical fees. On March 31, 1993, DD sent its bid as ’Host
Broadcaster’ for a sum of Rs. 1 crore stating inter alia,
that CAB should grant signals to it exclusively for India
with-
166
out the Star TV getting it. The DD also stated that they
would be in a position to create the ’Host Broadcaster
Signal’ and offer a live telecast of all the matches in the
tournament. Thereafter, on May 4, 1993, the DD by a faxhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 109
message reminded the President of CAB about its offer of
March 31, 1993. To that CAB replied on May 12, 1993 that as
the Committee of CAB had decided to sell/allot worldwide TV
rights to one party only, they would like to know whether DD
would be interested in the deal and, if so, to send their
offer for worldwide TV rights latest by May 17, 1993, on the
following basis, namely, outright purchase of TV rights and
sharing of rights fee. On May 14, 1993 DD by its fax
addressed to CAB stated that it was committed to its earlier
bid of Rs. 1 crore, namely, exclusive TV right in India
alone. The DD also stated that as there was a speculation
that Pakistan may not participate in the tournament, which
may affect viewership and consequent commercial accruals, DD
would have to rethink on the said bid also, in such an eventuality and requested CAB to reply to the said letter at the
earliest.
88. On June 14, 1993, according to the NUB, without
obtaining the required clearances from the Government for
telecasting, the CAB entered into an agreement with the
World Production Establishment (W/PE) representing the
interests of TWI [Trans World International], for
telecasting all the matches. The said agreement provided
for the grant of sole and exclusive right to sell/licence or
otherwise exploit throughout the world ’Exhibition Rights’
in the tournament. CAB shall only retain radio rights for
the territory of India. The CAB under the agreement was to
receive not less than US $550,000 as guaranteed sum. If any
income from the rights fee is received in excess of the
guaranteed sum, it was to be retained wholly by WPE until it
was eventually split into 70:30 per cent as per the agreement. If the rights fee/income received was less than
guaranteed sum, WPE was to pay the difference to CAB. The
WPE was to pay, where possible, television license fee in
advance of the start of the tournament.
89. On June 18, 1993, DD sent a fax to CAB stating therein
that from the press reports, it had learnt that CAB had entered into an agreement with TWI for the TV coverage of the
tournament, and the DD had decided not to telecast the
matches of the tournament by paying TWI, and that DD was not
prepared to enter into any negotiations with TWI to obtain
the television rights for the event. On June 30, 1993, DD
also informed similarly to International Management Group,
Hong Kong.
90. On September 2, 1993, the Department of Youth Affairs
and Sports, Ministry of Human Resources Development,
addressed a letter to the CAB informing it that the
Government had no objection to the proposed visit of the
Cricket Teams of Pakistan, South Africa, Sri Lanka, West
Indies and Zimbabwe, to India for participation in the
tournament. The Department further stated that no foreign
national shall visit any restricted/protected/prohibited
area of India without permission from the Ministry of Home
Affairs. It was also clarified that the sanction of foreign
exchange was subject to the condition that CAB would utilize
only the minimum foreign exchange required for the purpose
and shall deposit foreign exchange obtained by
167
it by way of fee, sponsorship, advertisements, broadcasting
rights, etc. through normal banking channels under intimation to the Reserve Bank of India. On September 17, 1993 on
the application of CAB made on September 7, 1993, VSNL advised CAB to approach the respective Ministries and the
Telecom Commission for approval (a) regarding import of
earth station and transmission equipment and (b) for
frequency clearance from Telecom Commission. The satellitehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 109
to be used for the transmission coverage, was also required
to be specified. It was further stated that CAB should
approach VSNL for uplinking signal to INTELSAT at Washington. The TWI was advised to apply VSNL for necessary
coordination channels and DD phone facility covering each
location. On October 9, 1993, TWI wrote to VSNL seeking
frequency clearance from the Ministry of Communications.
The TWI informed VSNL that they will be covering the
tournament and that they were formally applying for its permission to uplink their signal as per the list attached to
the letter. They also sought frequency clearance for the
walkie-talkie .On October 13, 1993, the Ministry of Home
Affairs informed the CAB that the Ministry had ’no
objection’ to the filming of the cricket matches at any of
the places mentioned in the CAB’s letter and that the ’no
objection’ pertains to the filming of the matches on the
cricket grounds only. The Ministry also gave its ’no objection’ to the use of walkie-talkie sets in the play grounds
during the matches subject to the permission to be obtained
from WPC.
91.On October 18, 1993, the CAB addressed a letter to DD for
telecasting rights for telecasting matches mentioning its
earlier offer of rights for telecasting and pointed out that
the offer of Rs.10 million made by DD vide its fax message
dated March 31, 1993 and on the condition the CAB should not
grant any right to Star TV was uneconomical, and considering
the enormous organizational cost, they were looking for a
minimum offer of Rs.20 million. The CAB also pointed out
that the offers received by them from abroad including from
TWI, were much higher than Rs.20 million and that the
payment under the offers would be made in foreign exchange.
The CAB also stated that they were given to understand that
DD was not interested in increasing their offer and hence
they entered into a contract with TWI for telecasting the
matches. However, they were still keen that DD should come
forward to telecast the matches since otherwise people in
India would be deprived of viewing the same. Hence they had
made TWI agree to co-production with DD and they also prayed
the DD for such co-production. The CAB’s letter further
stated that during a joint meeting the details were worked
out including the supply of equipment list by the respective
parties, and it was decided in principle to go for a joint
production. The CAB stated that it was also agreed that DD
would not claim exclusive right and CAB would be at liberty
to sell the rights to Star TV. Thereafter CAB learnt from
newspaper reports that DD had decided not to telecast the
matches. Hence they had written a letter to DD dated
September 15, 1993 to confirm the authenticity of such news,
but they had not received any reply from DD. It was pointed
that in the meanwhile they had been repeatedly approached by
Star TV, Sky TV and other network to telecast matches to the
Indian audience and some of them on an exclusive basis.
But they
168
had not taken a decision on their offers, since they did not
want to deprive DD’s viewers. It was further recorded that
the CAB had also learnt recently that DD would be interested
in acquiring the rights of telecast provided it was allowed
to produce the matches directly, and the matches produced by
TWI were made available to it live, without payment of any
technical fees. After recording this, the CAB made fresh
set of proposals, the gist of which was as follows:
1. TWI and Doordarshan would cover 9 (nine)
matches each in the tournament independently,
which are as follows:http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 109
Trans World International
November
08 South. Africa v. Zimbabwe (Bangalore)
11 India v. S. Africa (Delhi Chandigarh)
13 W.Indies v. S.Africa (Bombay, Brabourne)
16 Pakistan v. S.Africa (Cuttack)
19 S.Africa v.Sri Lanka (Guwahati)
21 India v. Pakistan (Chandigarh)
23 First Semi Final (Calcutta)
- Second Semi Final (Calcutta)
- Final (Calcutta)
Doordarshan
November
07 India v. Sri Lanka (Kanpur)
09 W.Indies v. Sri Lanka (Bombay,Wankhede)
15 Sri Lanka v. Zimbabwe (Patna)
16 India v. W. Indies (Ahmedabad)
18 India v. Zimbabwe (Indore)
21 W. Inidies v.Zimbabwe (Hyderabad)
2. TWI will do the coverage of thesematches
with their own equipment, crew and
commentators. Similarly, Doordarshan will
also have their own crew, equipment and
commentators for the matches produced by them.
3. Doordarshan will be at liberty to use
their own commentators for matches produced by
TWI for telecast in India. Similarly, TWI may
also use their own commentators if they
televised matches produced by Doordarshan in
other networks.
4. TWI will allow Doordarshan to pick up
the Signal and telecast live within India,
free of charges. Similarly, Doordarshan will
allow TWI to have the Signal for
live/recorded/highlights telecast abroad, free
of charges.
5. Doordarshan will not pay access fees to
CAB, but shall allow 4 minutes advertising
time per hour (i.e. 28 minutes in 7 hours).
The CAB will be at liberty to sell such time
slot to the advertisers and the proceeds so
received will belong to CAB.
6. Contract will be entered upon by the CAB
and Doordarshan directly for the above
arrangements. TWI will give a written
undergoing for the coverage breakup as
mentioned in point 1.
7. Score Card and Graphics shall be
arranged by CAB and the expenses for such
production or income derived from sponsorship
shall be on the account of CAB. Both TWI and
Doordarshan will use such Score Cards and
Graphics as arranged by CAB.
92. The CAB requested the DD to communicate their final
decision in the matter before October 21, 1993.
93. On October 26, 1993 VSNL sent a communication to
INTESLSAT at Washinton seeking information of uplinking
timings for TV transmission asked for by CAB/TWI. On October
27, 1993 the Tele-
169
communications Department sent a letter to the Central Board
of Excise and Customs on the question of temporarily importing electronic production equipment required for
transmission of one-day matches of the tournament and
conveying ’ no objection’ of the Ministry of Communicationshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 109
to the proposal, subject to the organizers coordinating with
WTC (DoT) for frequency clearance, from the "Standing
Advisory Committee on Frequency Allocation (SACFA)", for TV
up-linking from different places and coordinating with VSNL,
Bombay for booking TV transponders.
94. On October 27, 1993, DD informed CAB with reference to
its renewed offer of October 18, 1993 that the terms and
conditions of the offer were not acceptable to it and that
they have already intimated to them that DD will not take
signal from TWI - a foreign Organisation. They also made it
clear that they had not agreed to any joint production with
TWI. On October 29, 1993, CAB replied to DD that they were
surprised at the outright rejection of the various
alternative proposals they had submitted. They had pointed
out that the only reason given for rejection was that DD
will not take signals from TWI, which was a foreign organization. Since they had also suggested production of live
matches by DD the question of taking signal from TWI did not
arise. CAB further stated that purely in deference to DD’s
sensitivity about taking signal from TWI, CAB would be quite
happy to allow DD to produce its own picture of matches and
DD may like to buy rights and licenses from CAB at ’a price
which will be mutually agreed upon, and that these rights
would be on nonexclusive basis on Indian territory. On
October 30, 1993, DD sent a message to CAB stating that DD
will not pay access fee to CAB to telecast the matches.
However, for DD to telecast the matches live, CAB has to pay
technical charges/ production fee at Rs.5 lakh per match.
In that case DD will have exclusive rights for the signal
generated and the parties interested to take the signal will
have to negotiate directly with the DD. On October 31, 1993
DD sent a fax message to CAB to the same effect.
95. On November 1, 1993 VSNL deputed its engineers/staff to
be at the venues where the matches were being played to
coordinate with TWI for TV coverage. On November 2, 1993,
TWI paid US $29,640 and [Pounds] 121,400 to VSNL as fees for
INTELSAT charges. On the same day, the Finance Ministry
permitted the equipment of TWI to be imported on certain
conditions by waiving the customs and additional duties of
customs. On November 4, 1993, CAB addressed a letter to DD
referring to DD’s fax message of October 31, 1993 asking for
certain clarification on the offer made by DD. In this
letter, CAB stated that since, DD had asked for fees for
production and telecast of matches, it was presumed that all
revenue generated from the matches or entire timeslot for
advertisements, would belong to CAB and that they shall have
the right to charge access fees including other charges from
parties abroad, and DD would telecast those matches for
which CAB will pay the charges. The choice of the matches
to be telecast by DD would be determined by CAB. On November 5, 1993, the DD rejected the terms.
96. On November 8, 1993, CAB filed
170
a writ petition in the Calcutta High Court praying, among
others, that the respondents should be directed to provide
telecast and broadcast of all the matches and also provide
all arrangements and facilities for telecasting and
broadcasting of the matches by the agency appointed by the
CAB, VI_., TWI. Interim reliefs were also sought in the
said petition. On the same day, the High Court directed the
learned advocate of the Union of India to obtain instructions in the matter and in the meanwhile. passed the interim
orders making it clear that they would not prevent DD from
telecasting any match without affecting the existing
arrangements between CAB and TWI. The writ petition washttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 109
posted for further hearing on November 9, 1993 on which day,
the learned Single Judge confirmed the interim orders passed
on November 8, 1993 and respondents were restrained from
interfering with the frequency lines given to respondents
NO.10 [TWI]. On 10th November, 1993, VSNL advised INTELSAT
at Washington seeking cancellation of its request for booking. On November 11, 1993, the learned Judge partly allowed
the writ by directing All India Radio to broadcast matches.
On November 12, 1993 in the appeal filed by the Union of
India against the aforesaid orders of the Division Bench,
the High Court passed interim order to the following effect:
(a)that CAB would pay DD a sum of Rs.5 lakh per match and
the revenue collected by DD on account of sponsorship will
be kept in separate account.
(b)that DD would be the host broadcaster.
(c)that Ministry of Telecommunication would consider the
question of issuing a
license to TWI under the Telegraphs Act and decide the same
within three days.
97. On November 12, 1993, the Film Facilities Officer of the
MIB informed the Customs Department at New Delhi, Bombay and
Calcutta airports, that as TWI had not obtained required
clearances from the Government for the coverage of the
tournament, they should not be permitted to remove exposed
film outside India till it was cleared by the Government.
On the same day, DD asked the CAB providing various
facilities at each match venue as this was pre-requisite for
creating host broadcaster signal in India. CAB sent a reply
on the same day and called upon the DD to telecast matches
within India pursuant to the High Court’s order. On the
same day again the Collector of Customs, Bombay called upon
CAB to pay customs duty on the equipment as there was a
breach in the terms of the, exemption order.
98. On the same day, i.e., November 1993, again the
Committee of Secretaries decided that the telecast of all
sporting events would be within the exclusive purview of the
DD/MIB. It was also decided that for the purposes of
obtaining necessary clearances for telecasting different
types of events for the country, a Single Window service
would be followed where the concerned Administrative Ministry would be the ’Nodal’ Ministry to which’ the
application will be submitted and it would thereafter be the
function of the ’Nodal’ Ministry to obtain permissions from
the concerned Ministry/Agencies.
99. On 14th November, 1993, the High Court in clarification
of its order of No-
171
vember 12, 1993 directed, among others, as follows:
[a] In case the signal is required to be generated by TWI
separately, such necessary permission should be given by DD
and/or other competent authorities. .
[b] The differences with regard to the placement of cameras
etc., if any, between cricket authority and DD should be
mutually worked out, and if this cannot be done, the dispute
should be decided by the Head of the Police in the place
where the match was being played.
[c] The equipment of TWI which had been seized by the
Customs Authority should be released upon undertaking that
the same would not be used for any. other purpose and
[d] The VSNL should take proper steps for uplinking, and
should not take any steps to defeat the orders of the Court.
The TWI should comply with all financial commitments to
VSNL.
100. On November 15, 1993, the CAB and another filed the
present Writ Petition No. 836 of 1993. On November 15.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 109
1993, this Court passed an order directing the Secretary
Ministry of Communications to hold meeting on the same day
by 4.30 P.M. and communicate his decision by 7.30 P.M. The
Customs Authorities were directed to release the equipments.
On the same day at night another order was passed partly
staying the orders of the Chairman, Telecommunications and
Secretary, Dot. TWI was permitted to generate its own
signals and Customs Authorities were directed to release the
goods forthwith.
101. , The DD filed Contempt Petition in
the High Court on the same day against CAB and another, for
noncompliance with the orders of the High Court. The DD
also filed the present Special Leave Petitions in this Court
on the same day.
102. What emerges from the above correspondence is as
follows. The CAB as early as on 15th March, 1993, had
offered to the DD two alternatives, viz., either the DD
would create host broadcaster signal and undertake live
telecast of all the matches in the tournament or any other
party may create the host broadcaster signal and DD would
purchase from the said party the rights to telecast the said
signal in India. The CAB made it clear that in either case,
the foreign TV rights would remain with it. The CAB also
asked the DD to indicate the royalty that it will be willing
to pay in either case. To that, on 18th March, 1993, the DD
rejoined by asking in turn the amount of royalty that the
CAB expected if the rights were given to it exclusively for
India without the. Star TV getting it. On 19th March,
1993, the CAB informed the DD that they would charge US $8
lakhs for giving the DD the right to create the host
broadcaster signal
and also for granting it exclusive right for India without
the Star TV getting it It was however, emphasised that the
CAB would reserve the right to sell/license the right of
broadcasting worldwide excluding India and the Star TV. The
CAB also stated that the DD would be under an obligation to
provide a picture and commentary subject to payment of DD’s
technical fees. On 31st March, 1993, the DD sent its bid as
host broadcaster for a sum of Rs.1 crore [i.e.. about US
$3.33 lakhs at the then exchange rate]. Obviously, this was
less than 50 per cent of the royalty which was demanded by
the CAB. The
172
CAB was, therefore, justified in looking for other
alternatives and that is what they did before the DD by a
fax message of 4th May, 1993 reminded the CAB about DD’s
offer of Rs. 1 crore [i.e., US $3.33 lakhs]. To that
message, the CAB replied on 12th May, 1993 that it had
decided to sell/allot worldwide TV rights to only one party
and, therefore, they would like to know whether the DD would
be interested in the said deal and if so, to send their
offer for worldwide TV rights, latest by 17th May, 1993. To
this, on 14th May, 1993, the DD by Fax, replied that it was
interested only in exclusive TV rights for India alone
without the Star TV getting it and that it stood by its
earlier offer of Rs. 1 crore [i.e., US $3.33 lakhs]. The
DD went further and stated that as there was a speculation
that-Pakistan might not participate in the tournament which
eventuality was likely to affect viewership and commercial
accruals, it will have to rethink on that bid also meaning
thereby that even the offer of Rs. 1 crore may be reduced.
103. According to the MIB, the CAB, thereafter, entered
into an agreement with World Production Establishment
representing the interests of TWI for telecasting all the
matches without obtaining clearance from the Government forhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 109
telecasting, and granted TWI sole and exclusive right to
sell or otherwise exploit all exhibition rights of the
tournament. Under the agreement with TWI, the CAB was to
receive US $ 5.50 lakhs as guaranteed sum and in addition,
if any rights fee income was received in excess of the
guaranteed sum, it was to be. split in the ratio of 70:30
between the parties, i.e. 70 per cent to the CAB and 30 per
cent to TWI. Learning of this, the DD informed the CAB that
it had decided not to telecast the matches of the
tournament by paying TWI TV rights fee and that it was not
prepared to enter into any negotiations with TWI for the
purpose.
104. Again on 18th October, 1993, CAB addressed a
letter to DD for telecasting the matches mentioning its
earlier offer of rights for telecasting and pointed out that
the offer of Rs. 1 crore made by DI) on the condition that
the CAB should not grant any right ’to Star TV was
uneconomical. CAB also pointed out that considering the
enormous organisational costs involved, they were looking
for a minimum offer of Rs.20 million.In this connection,
they pointed out that the offers received by them from
abroad-including from TWI were much higher than Rs.20
million and under those offers, the payment was also to be
received in foreign exchange. The CAB further stated in
that letter that they were given to understand that DD was
not interested in increasing their offer and hence they
entered into a contract with TWI for telecasting the
matches. Yet, they were keen that DD should telecast the
matches since otherwise people in India would be deprived of
viewing the same. They had, therefore, made the TWI agree
for co-production with DD. They, therefore, requested the
DD to agree to such co-production. The CAB also stated in
the said letter that in fact in a joint meeting, details of
such arrangement were worked out including the supply of
equipment list by the respective parties and it was decided
in principle to go in for joint production. In the meeting,
it was further agreed that DD would not claim exclusive
rights and the CAB would be at liberty to sell the rights to
Star TV. However, since subsequently they had learnt from
newspaper reports that DD had decided not to telecast the
matches, by their
173
letter of 15th September, 1993 they had asked DD to confirm
the authenticity of the news items. The DD, however, had
not responded to the said letter. In the meanwhile, many
other networks had repeatedly approached them for
telecasting matches to the Indian audience and some of them
on exclusive basis. But they had still kept the matter
pending since they did not want to deprive the viewers of
the DD of the matches. They further added that they had
also learnt that DD would be interested in acquiring rights
of telecast provided it was allowed to produce some matches
directly and the matches produced by TWI are made available
to it live without payment of any technical fee. The CAB,
therefore, in the circumstances, suggested a fresh set of
proposals for DD’s consideration and requested response before 21st October, 1993. On 27th October, 1993, DD
responded to the said letter in the negative and stated that
the offer made was not acceptable to it and they had already
communicated to that effect earlier, stating that they will
not take any signal from TWI. DD further denied that they
had agreed to any joint production with TWI. The CAB by its
letter of 29th October, 1993 pointed out, in response to
this letter, that since they had also suggested production
of live matches by DD, question of taking signals from TWIhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 109
did not arise, and in deference to DD’s sensitivity about
taking signals from TWI, CAB would be quite happy to allow
DD to produce its own picture of matches and DD may buy
rights and licences from it at a price which will be
mutually agreed upon.
105. Thus, the controversy between the parties was with
regard to the terms for the telecasting of the matches. It
must be noted in this connection that the DD had
never stated to the CAB that it had no frequency to spare
for telecasting the matches. On the other hand, if the CAB
had accepted the terms of the DD, DD was ready to telecast
the matches. Therefore, the argument based on resource
crunch as advanced on behalf of the MIB/ DD, is meaningless
in the present case.
106. All that we have to examine in the present case is
whether the MIB/DD had stipulated unreasonable conditions
for telecasting the matches. It is apparent from the above
correspondence between the parties that CAB wanted a minimum
of U.S. $8 lakhs, i.e., Rs.2.40 crores. However, DD
insisted that it would be the host broadcaster and will have
exclusive telecasting rights for India and for these rights.
it will pay only Rs. 1 crore. i.e. US $3.33 lakhs. It had
also threatened to reduce the said offer of Rs. one crore
because Pakistan was not likely to participate in the
tournament. When it was pointed out by the CAB that this
offer was uneconomical taking. into consideration the
enormous costs involved and that they were looking for a
minimum of Rs. 2 crores and had received higher offers from
other parties under which the payments will also be made in
foreign exchange, DD stuck to its earlier offer and refused
to raise it. In the meanwhile, the CAB received an offer of
U.S. $5.50 lakhs, i.e., Rs. 1.65 crores from TWI as
guaranteed sum plus a share to the extent of 70 per cent in
the rights income fee. The CAB being the sole organiser of
the event had every right to explore the maximum revenue
possible and there was nothing wrong or improper in their
negotiating with TWI the terms and conditions of the deal.
However, the only response of DD to these arrangements which
were being worked out between the CAB and
174
TWI was that it would not telecast the matches of the
tournament by paying TWI the fees for purchasing the rights
from that Organisation. Even then the CAB did not shut its
doors on DD, and by its letter of 18th October, 1993
informed the DD that it was keen that DD should telecast the
matches so that people in India are not deprived of viewing
the matches. They also informed the DD that it was with
this purpose that they had made TWI agree for co-production
with the DD and had made a fresh set of proposals. However,
these proposals were on materially different terms. To
this, the DD replied by its letters of 27th October, 1993
that the terms and conditions of the offer were not acceptable to it. The CAB by its letter of 29th October, 1993
again offered the DD that if their only objection was to
taking signals from TWI, since they had suggested production
of live matches by DD in their fresh proposals, there was no
question of taking signals from TWI and they should
reconsider the proposals. To this, the only reply of the DD
was that they will not pay any Access Fee to CAB to telecast
the matches and if DD were to telecast the matches, the CAB
will have to pay Technical/Production Fee at the rate of
Rs.5 lakhs per match, and in that case the DD will have
exclusive rights for the signal generated, and the parties
interested will have to take the signals from the DD after
negotiating directly with it. In other words, the DD tookhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 109
the stand that not only it will not pay any charges to the
CAB for the rights of telecasting the matches, but it is CAB
which will have to pay the charges, and that the DD will be
the sole producer of signals and others will have to buy the
signals from it..
107. Thus the correspondence between
the parties shows that each of the parties was trying to
score over the other by taking advantage of its position.
The blame for the collapse of the negotiations has to be
shared by both. The difference, if any, was only in the
degree of unreasonableness. If anything, this episode once
again emphasises the need to rescue the electronic media
from the government monopoly and bureaucratic control and to
have an independent authority to manage and control it.
108. Coming now to the change in the, stand of the
other Departments of the Government for granting facilities
to the agency engaged by the CAB, the facts make a revealing
reading. The actions of the various Departments of the
Government, referred to earlier, show firstly, that the Ministries of Human Resources Development, of Home Affairs, of
Finance, of Communications, and the VSNL had no objection
whatsoever to the arrangements which the CAB had entered
into with TWI, the foreign agency, for covering the cricket
matches. In fact they granted all the necessary permissions
and facilities to the CAB/TWI in all respects subject to
certain conditions with which neither the CAB nor TWI had
any quarrel. Secondly, these various Departments had
accepted TWI as the agency of CAB for the purposes of the
said coverage and they had no objection to the TWI covering
the matches on the ground that it was a foreign agency.
This was the situation till the writ petition was filed by
the CAB in the Calcutta High Court on 8th November, 1993.
It is necessary to remember in this connection that the
decision or the DD to intimate CAB that it will not pay even
access fee to the CAB to telecast the tournament and that it
was for the CAB to pay the technical/pro-
175
duction fee of Rs. 5 lakhs per match with DD having
exclusive right for the signal generated, and others will
have to buy it after negotiating directly with the DD, was
taken on 30th/31st October, 1993. It is in that context
that further developments which are relevant for our purpose
and which took place during the pendency of the Court
proceedings, have to be viewed. It is only on 12th
November, 1993 that the Committee of Secretaries came out
with the concept of the ! nodal ministry. By itself, the
decision to form the nodal ministry to coordinate the
activities of all the concerned ministries and departments
is unexceptional. But the time of taking the decision and
its background was not without its significance. However,
there is no adequate material on record to establish a nexus
between the MIB/DD and the aforesaid actions of the other
authorities.
109. The nexus in question was sought to be established
by the CAB by pointing out to the letter addressed by the
Deputy Secretary in MIB with the approval of the Secretary,
of that Ministry to Department of Youth Affairs and Sports
of the Ministry of Human Resources Development. It in terms
refers to the meeting of the committee of Secretaries on
12th November, 1993 and states that according to the socalled "extant policy" of the Government, as endorsed by the
Committee of Secretaries, the telecasting of sporting events
is within the exclusive purview of DD/MIB. Accordingly, the
NIB opposes the grant of any permission to M/s. WPE or its
agency TWI or any Indian company to cover the matches forhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 109
general reception in India through uplinking facility except
in collaboration with DD with only the latter being the sole
agency entrusted with the task of generating TV signal from
the venue
of the matches. It further states that the MIB opposes [i]
import of any satellite earth station for the coverage of
the series, [ii] the grant of any ad-hoc exemption for the
import of equipment by WTE or TWI without their first
producing the approval of the competent authority permitting
its use within India, in terms of the provisions of Indian
Telegraph Act, 1885 and the Wireless Telegraph Act, 1933 in
the absence of which possession of such equipment within
India constitutes an offence, [iii] M/s. WTE or TWI being
permitted to undertake shooting of the cricket matches at
different places and grant of visa or RAP to its personnel
for visiting India, and [iv] the grant of any permission to
any aircraft leased by M/s. WPE/TWI for landing at any
international or national airport.
110. It was urged that the question of the absence of
permission/licence of the requisite authorities under the
Indian Telegraph Act and the Wireless Telegraph Act was
never raised or made a ground for denial of the right to the
BCCI/CAB to telecast the matches or to uplink the signal
through TWI till after CAB had approached the Calcutta High
Court on 8th November, 1993. It was contended that the MIB
woke up suddenly to the relevant provisions of the statute
after the Court proceedings. We are, however, not satisfied
that these events conclusively establish that the other
Departments acted at the behest of the DD/MIB.
111. The circumstances in which the High Court case to
pass its interim order dated 12th November, 1993 may now be
noticed. The MIB and DD’s appeals are directed against the
said order ’and writ petition is filed by the CAB for
direction to respondent Nos. 1 to 9, which include,
176
among others, Union of India.
112. In the writ petition filed by the CAB before the
High Court on 8th November, 1993, the learned Single Judge
on the same day passed an order of interim injunction
commanding the respondents to provide all adequate
facilities and cooperation to the petitioner and/or their
appointed agency for free and uninterrupted telecasting and
broadcasting of the cricket matches in question to be played
between 10th and 20th November, 1993, and restrained the respondents from tampering with, removing, seizing or dealing
with any equipment relating to transmission, telecasting or
broadcasting of the said matches, belonging to the CAB and
their appointed agency, in any manner whatsoever. On the
next day, i.e., 9th November, 1993 the said interim order
was made final. On the 11th November, 1993, on the
application of the CAB complaining that the equipment
brought by their agency, viz., TWI [respondent No. IO to the
petition] were seized by the Bombay Customs authorities
under the direction issued by the Ministry of Communications
and the MIB, another order was passed by the learned Judge
directing all Government authorities including Customs
authorities to act in terms of the interim orders passed
earlier on 8th/9th November, 1993. While passing this order
in the presence of the learned counsel for the respondents
who pleaded ignorance about the seizure of the equipment by
the Customs authorities, the learned Single Judge observed,
among other things, as follows:
"It is submitted by the learned Counsel on behalf of the
respondent that since Doordarshan has been denied
telecasting of the tournament by the respondent No. 6,http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 109
Akasliban has also decided to stop broadcasting and in support of his contention has produced a
letter dated 10th of November, 1993 issued by the Station
Director, Calcutta, for Director General, All India Radio to
Shri S.K. Kundu, Central Government’s Advocate whereupon it
appears that it was admitted, that All India Radio had
planned to provide running commentary of the matches of the
above tournament organised by the Cricket Association of
Bengal, but as Doordarshan was denied the facility of
nominating the Host Broadcaster’s Signal and it consequently
decided not to cover those matches, All India Radio also had
decided to drop the coverage of those matches since the
principles on which Doordarshan based its decision, viz.,,
the protection of inherent interest of the National Broadcasters to generate the signal of sports, applied equally to
the All India Radio.
I fail to understand the logic behind the said letter and
the stand taken by the All India Radio in the matter which
appears to me wholly illogical and ridiculous, Doordarshan
might have some dispute with the.... regarding the right to
be the Host Broadcasters Signal including financial
questions, but the All India Radio, which itself volunteered
to broadcast the matches themselves, and when, admittedly,
no financial transaction is involved between the All India
Radio and the respondent No.6, denial of the All India Radio
to broadcast the said matches only on the ground that since
Doordarshan
was denied by the respondent No.6 to be 1 the Host
Broadcaster’s Signal, the All India Radio stopped
broadcasting the matches following the same principle, appears to be absolutely whimsical and capricious.
x x x x x x
Such denial by the All India Radio certainly is an act done
against the public interest and thus cannot be supported
and/
177
or upheld to deprive the general people of India of such
small satisfaction...
x x x x x x
Accordingly, I find the action of the All India Radio in
stopping the broadcasting of aforesaid tournament is wholly
illegal, arbitrary and mala fide....
This writ application accordingly succeeds and allowed to
the extent as stated above, and let a writ in the nature of
mandamus to the extent indicated above be issued."
113. The Union of India preferred an appeal against the said
decision and in the appeal moved an application for staying
the operation of the orders passed by the learned Single
Judge on 8th/9th November, 1993. Dealing with the said
application, the Division Bench in its order dated
other things, as follows:
"Mr. R.N. Das, learned Counsel appearing for and on behalf
of the Union of India and others including the Director
General of Doordarshan, appearing with Mr. B. Bhattacharya
and Mr. Prodosh Mallick submitted inter alia, that the
Doordarshan authority is very much inclined and keen to
telecast the Hero Cup matches in which several parties from
abroad are participating including India. But it was
pointed out that the difficulties have been created by
Cricket Association of Bengal in entering into an agreement
with Trans World International [UK] Inc. World Production
the respondent No.10 of the writ petition wherein the
Cricket Association of Bengal has given exclusive rights to
telecast to that authority. It was submitted by Mr. Das
that under Section 4 of the Indian Telegraph Act, 1885 thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 109
Central Government have the exclusive privilege of
establishing, maintaining
and working telegraph and that it was further submitted that
the expression telegraph includes telecasts through
Doordarshan. it was further provided that proviso to Section
4 [1] of the said Act provides that the Central Government
may grant a licence on such conditions and in consideration
of such payments as it thinks fit to any person to
establish, maintain or work a telegraph within any part of
India. Relying upon the provisions it was submitted that
neither the CAB nor the TWI respondent No. 10 of the writ
application have obtained any licence for the purpose of
telecasting the matches direct from India."
114. The Court then referred to the correspondence between
the CAB and the DD between 31st March, 1993 and 31st October, 1993 and the letters of no objection issued to the CAB
by the Ministry of Communications and the VSNL and to the
acceptence by the VSNL of the payments from TWI as per the
demand of the VSNL itself for granting facilities of
uplinking the signal and recorded its primafacie finding
that the DD was agreeable to telecast matches live for India
on a consideration of Rs.5 lakhs per match which was accepted under protest and without prejudice by the CAB and
the only dispute was with regard to the revenue to be earned
through advertisements during the period of the matches.
The Court said that it was not adjudicating on as to what
and in what manner the revenue through advertisements would
be created and distributed between the parties. It left the
said points to be decided on merits in the appeal pending
before it and proceeded to observe as follows:
"... but it present having regard to the
interest of millions of Indian viewers who are
anxiously expecting to see such live
178
telecast, we record as Doordarshan is inclined
to telecast the matches for the Indian viewers
on receipt of Rs.5 lakh per match and to enjoy
the exclusive right of signalling within the
country being host broadcaster, we direct the
CAB to pay immediately a sum of Rs.5 lakhs per
match for this purpose and the collection of
revenue on account of sponsorship or otherwise
in respect of 28 minutes which is available
for commercial purpose be realised by the
Doordarshan on condition that such amount
shall be kept in a separate account and shall
not deal with and dispose of the said amount
until further orders and we make it clear
regarding the entitlement and the manner in
which the said sum will be treated would abide
by the result of the appeal or the writ appli-
cation. Accordingly, it is made clear that
Doordarshan shall on these conditions start
immediately telecasting the live matches of
the Hero Cup for the subsequent matches from
the next match in India. Mr. Das Id. counsel
appearing on behalf of the appellant submits
that they were in a position technically or
otherwise to telecast immediately. With
regard to the right of TWI to telecast the
matches outside India is concerned, we also
record that on time of hearing the counsel
appearing on behalf of the appellant showed an
order in three lines that the authority
concerned has summarily and without giving anyhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 109
reason and/or any hearing whatsoever directed
to VSNL not to allow the TWI to transmit or to
telecast from India in respect of the Hero Cup
matches but it was submitted by the learned
Counsel appearing for the appellant that they
are very much keen to consider the matter in
proper perspective in accordance with laws,
having regard to the national impact on this
question. It appears that on the basis of the
representation made by VSNL, TWI came into the
picture and subsequently TWI entered into an
agreement with the CAB. At this stage, we are
not called upon to decide the validity or
otherwise
of such an agreement entered into by the
parties. As a matter of fact, we are refer-
ring this without prejudice to the rights and
contentions of the parties. It further
appears that the Government of India through
the Department of Communication stated that
the said department had no objection with
regard to the permission to the CAB for
temporarily importing electronic product
equipments required for transmitting one day
matches of the Hero Cup as a part of Diamond
Jubilee Celebration to be started from
November 7 to 27, 1993, the Ministry has no
objection to proposal "subject to the
organisers Co-ordinating with WPC [DOT] for
frequency clearance from the Standing Advisory
Committee on frequency allocation {SACFA} for
TV uplinking from different places and
coordinating with VSNL, Bombay for booking of
TV transponders etc. It appears that the said
no objection certificate has created a
legitimate expectation, particularly in view
of the fact that the money demanded by VSNL in
this behalf was duly paid by TWI and all ar-
rangements have been made by TWI for
performing the job. As we find that no formal
permission is required under proviso to
Section 4 [1] of Indian Telegraph Act is there
in favour of the party, having regard to the
facts stated above and having regard to
National and International impact on this
question and having regard to the fact that
any decision taken will have the tremendous
impact on the International sports, we direct
the appellant No.5 who is respondent No.6 in
the writ application. The Secretary, Ministry
of Telecommunication, Sanchar Bhavan, New
Delhi, Government of India to consider the
facts and circumstances of the case clearly
suggesting that there had already been an
implied grant of permission, shall grant a
provisional permission or licence without
prejudice to the rights and contentions of the
parties in this appeal and the writ
application and subject to the condition that
the respondent No.6
179
in the writ application will be at liberty to
impose such reasonable terms and condi- tions
consistent with the provision to Section 4
[1]of the Indian Telegraph Act, having regardhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 59 of 109
to the peculiar facts and circumstances of the
case. If TWI comply with such terms and
conditions that may be imposed without
prejudice to their rights and contentions in
the interest of sports and subject to the
decision in this appeal or the writ
application shall be entitled to telecast for
International viewers outside India.... The
Secretary, Ministry of Telecommunication,
Sanchar Bhavan, New Delhi, Government of In-
dia, is directed to decide this question as
directed by us within three days from today
and all the parties will be entitled to be
heard, if necessary. We must put in on record
our anxiety that the matter should be taken in
the spirit of sports not on the spirit of
prestige or personal interest and should
approach the problem dispassionately rising
above all its narrow interest and personal
ego..... In order to comply with this order
any order of detention of the equipments of
TWI should not be given effect to."
115. The Court also made it clear that in order to comply
with its order, any order of detention of the equipments of
TWI should not be given effect to. Notwithstanding this
order or probably in ignorance of it, the Collector of
Customs, Bombay wrote to the CAB that it had given an
undertaking to fulfill all the conditions of the ad hoc
order dated 2nd November, 1993 under which exemption was
given to it for importing the equipments. However, it had
not fulfilled the conditions laid down at [1] and [iii] of
para 2 of the said ad hoc exemption order and, therefore, it
should pay an amount of Rs.3,29,07,711/as customs duty on
the equipment imported by TWI. They also threatened that if
no such duty was paid, the goods would be confiscated. In
view of the said show cause notice, the CAB moved the
Division Bench and on 14th November, 1993. The lawyer of
TWI also wrote a letter in the meanwhile on 13th November,
1993 to the Customs authorities at Bombay stating therein
that as TWI had sent a letter enclosing a copy of the order
of the Division Bench passed on 12th November, 1993
directing them not to give effect to the detention of the
equipments and complaining that in spite of it they had not
released the goods and, therefore, they had committed a contempt of the Court. This grievance of CAB and TWI along
with the complaint of the DD for not permitting them to
place their cameras at the requisite places, were heard by
the Division Bench on 14th November, 1993 when the match was
already being played in Bombay. The Bench observed that the
Court was given to understand that none of the parties was
inclined to go higher up against its earlier order and that
what was required was certain clarification of that order in
the changed circumstances. The learned counsel for the CAB
stated that they were not going to oppose the DD placing
their cameras but the dispute had arisen as to the
signalling to be made for the telecast. According to the
learned counsel for the Union of the India, there could be
only one signalling from the field and DD should be treated
as host broadcaster and the TWI should take signal from it.
This was opposed by the learned counsel for the CAB who contended. that DD had been given exclusive right as host
broadcaster so far as the telecasting of matches in India
was concerned. The telecasting of matches abroad was to be
done by TWI. The Division Bench held that the DD will have
the exclusive right of signalling for the purposes of tele-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 60 of 109
casting within the country, and they were to be treated as
host broadcasters so far as
180
telecasting within India was concerned. As far as TWI is
concerned, if it was authorised and permitted in terms of
their earlier order, it would be entitled to telecast
outside the country and to send their signal accordingly.
They also stated that in case the signalling was required to
be made by the TWI separately the necessary permission
should be given by the DD or other competent authorities.
They resolved the dispute with regard to the placement of
cameras by directing that DD will have first priority and if
there was any dispute on that account it would be resolved
by the local head of the Police Administration at the venue
concerned. They also directed the Customs authorities,
Bombay to release the equipments imported for the purposes
of TWI with the condition that the said equipments will be
used only for transmission of the matches and they shall not
deal with or dispose of the said equipments or remove it
outside the country without the permission of the Court. In
particular, they also directed the VSNL to take proper steps
for uplinking and not to take any step to defeat the
purpose.
116. Against the said order of the Division Bench, the
present appeals are preferred by the Ministry of Information
and Broadcasting and others whereas the writ petition is
filed by the CAB for restraining the respondents, (which
include, among others, Union of India [No. 1], Secretary,
Ministry of Information & Broadcasting [No.2], Director
General, Doordarshan [No.3], Secretary, Ministry of Communications [No.5], Director, Department of Telecommunications
[No.6], and Videsh Sanchar Nigam Limited [No.9], from preventing, obstructing and interfering with or creating any
hurdles in the implementation of agreement dated 14.6.1993
between the petitioner-CAB and respondent No. 10, i.e., TWI.
117. The matter was heard by this Court on 15th November,
1993. It appears from the record that although the High
Court had directed the Secretary, Ministry of Communications
to decide the question of granting of licence under Section
4 [1] of the Telegraph Act within 3 days from 12th November,
1993 by its order of the same day, the Secretary had fixed
the meeting for consideration of the application only on the
16th November, 1993. ’Mat itself was a breach of the High
Court’s order. This Court, therefore, directed the Secretary to hear the matter at 4.30 p.m. on 15th November, 1993
and communicate its decision to TWI or its counsel or to the
CAB or its counsel immediately thereafter but before 7.30
p.m. on the same day. This Court also directed the Customs
authorities to release the equipment forthwith which they
had not done in spite of the High Court’s order. The TWI
and CAB were, however, restrained from using the said
equipment till the licence was issued by the Secretary,
Department of Telecommunication.
118. Pursuant to the direction given by this Court, the
Secretary by his order of 15th November, 1993 after
referring to the judgment of the High Court and its implication and after taking into consideration the arguments of
the respective parties, held as follows:
"In this connection, we have to take into account an
important point brought to our notice by the Director
General Doordarshan. It is true that Section 4 of the
Indian Telegraph Act of 1885 enables the government to give
licences to agencies other than Doordarshan or the
181
government departments to telecast. In fact, such ahttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 61 of 109
permission had been given in January 1993 when the cricket
matches were telecast by the same TWI. However,
subsequently, I am given to understand that the government
policy in the Ministry of I&B has been that the uplinking
directly by private parties/foreign agencies from India for
the purpose of broadcasting should not be permitted.
It is true that in a cricket match we are not considering
security aspects. But, the point to be considered is
whether uplinking. given in a particular case will have its
consequences on other such claims which may not be directly
linked to sports and which will have serious implications.
Within the government, as per Allocation of Business Rules,
it is the Ministry of I&B which has the responsibility for
formulation and implementation of the policies relating to
broadcasting/telecasting.
As was made clear earlier, in this case, we are considering
two aspects. One is the generation of signals and the
second is their communication. The Department of
Telecommunication comes in the picture so far as the
communication aspect is concerned.
Taking into account the facts mentioned above, the only
reasonable conclusion I reach is that permission may be
given to TWI for telecast overseas through the VSNL, while
Doordarshan will be telecasting within the country. The TWI
will have to get the signals from Doordarshan for uplinking
through the VSNL by making mutual arrangements. So far as
VSNL is concerned, there should be no difficulty in
transmitting the signals through Intelsat as already agreed
upon.
In my view, the above decision takes into account the needs
of the millions of viewers both within the country and
abroad
who are keen to watch the game and at the same time ensures
that there is no conflict with the broad government policy
in the Ministry of I&B which is entrusted with the task of
broadcasting. It also takes into account the overall
aspects and the reasonable expectation created within the
TWI by the series of clearances given by the different
authorities of the Government of India".
119. This order which was passed around 7.30 p.m. was
challenged by the CAB, and being an urgent matter, was heard
by the Court late at night on the same day. The Court
stayed the order of the Secretary to the extent that it
imposed a condition that the TWI will have to get the
signals from the DD for uplinking through the VSNL by making
mutual arrangements. The Court directed that the TWI can
generate its own signal by focusing its cameras only on the
ground where the matches were being played, as directed by
the Ministry of Home Affairs and that they will take care
not to focus their cameras anywhere else.
120. For telecasting the triangular series and the West
Indies tour to India in 1994 season, the same disputes arose
between the parties. By their letter of 25th August, 1994,
the BCCI requested the Director, Sports, of the Ministry of
Human Resources Development, Department of Youth Affairs and
Sports to grant permission to it or TWI/SPN to telecast the
triangular series and matches to be played between India and
West Indies. By their letter of 30th August, 1994 written
to the Secretary, Department of Sports, the MIB opposed the
grant of uplinking facilities to any foreign agency. On
14th September, 1994, Ishan Television India Ltd. [with a
tie-up with ESPN which had contract with
182
BCCI, applied to the VSNL for uplinking facilities for
telecasting of the said matches. The VSNL thereafter wrotehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 62 of 109
to the NM for their "no objection" and the NUB opposed the
grant of "no objection" certificate and objected to VSNL
writing to the MIB directly for the purpose. The MM also
stated that their view in the matter was very clear that
satellite uplinking from Indian soil would be within the
exclusive competence of the MIB/DoT/DOS-and that the
telecast of sporting events would be the exclusive privilege
of DD. By their letter of 26th September, 1994, the ’nodal’
Ministry, i.e., Ministry of Human Resources Development
[Department of Youth Affairs and Sports addressed to all
the Ministries and Departments including the MIB called for
the remarks on the letter of the BCCI addressed to the nodal
Ministry. The MIB again wrote to the Sports Department of
the nodal Ministry, opposing grant of Single Window service
to the BCCI. On 3rd October, 1994, the VSNL returned the
advance which it had received from Ishan TV for uplinking
facilities. On 7th October, 1994, this Court passed the
following order:
"Pending the final disposal of the matters by
this interim order confined to telecast the
International Cricket Matches to be played in
India from October 1994 to December 1994, we
direct respondent Nos. 1 and 6 to 9 in Writ
Petition No.836/ 93 to grant forthwith
necessary permission/sanctions and uplinking
facilities for production, transmission and
telecasting of the said matches.
We also direct respondent Nos.2, 3 and 4 in
writ petition No.836/93 and all other
Government Agencies not to obstruct/restrict
in any manner whatsoever production,
transmission and telecasting of the said
matches for the said period by
the petitioner-applicant only on the ground
where the Cricket Matches would be played and
the signals are generated under the direct
supervision of the VSNL personnel.
So far as the production, transmission and
telecasting of these matches in India is
concerned, the Doordarshan shall have the
exclusive right in all respects for the
purpose, and the petitioner-applicant shall
not prevent Doordarshan from doing so, and in
particular shall afford all facilities for
Doordarshan to do so.
So far as the placement of cameras are
concerned both petitioner-applicant as well as
Doordarshan shall have equal rights. This
shall be ensured by Shri Sunil Gavaskar in
consultation with such technical experts as he
may deem necessary to consult. He is
requested to do so. As far as the
remuneration for Shri Sunil Gavaskar and the
technical expert is concerned, both
Doordarshan as well as the petitioner-
applicant will share the remuneration equally
which will be fixed by this Court.
As regards the revenue generated by the
advertisement by Doordarshan is concerned,
Doordarshan will deposit the said amount in a
separate account and preferably in a
nationalised Bank. The Doordarshan will have
the exclusive right to advertisement. All the
IAs are disposed of accordingly".
121. Since certain disputes arose between the parties,http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 63 of 109
on 18th October, 1994, this Court had to pass the following
order:
"The BCCI will ensure that all Cricket
Associations and staging Centres shall extend
every facility to the personnel authorised by
the Doordarshan to enter into the Cricket
Ground for production, transmission and
telecasting of the
183
matches without any late or hindrance.
The BCCI will also ensure that all Cricket
Associations staging the matches will make
available every facility and render such
assistance as may be necessary and sought by
the Doordarshan for effective telecasting of
the matches at the respective grounds and
stadia.
The BCCI shall not permit the ESPN to enter
into any contract either with A.T.N. or any
other Agency for telecasting in any manner all
over India, whether through the Satellite
footprints or otherwise, Cricket Matches which
are being telecast in India by the
Doordarshan. If the ESPN has entered into any
such contract either with A.T.N. or any other
Agency, that contract should be cancelled
forthwith.
Since this Court is seized of the present
matter, no court should entertain any writ
petition, suit or application which is
connected in any manner with the discharge of
obligation imposed on the respective parties
to the present proceedings. If any such writ
petition suit or application is already
entertained, the Courts should not proceed
with the same till further orders of this
Court.
The BCCI and the Doordarshan will mutually
solve the problem of the Control Room and
Storage Room facilities needed by the
Doordarshan, preferably in one meeting La
Bombay on 20th October, 1994".
122. The law on the subject discussed earlier makes it clear
that the fundamental right to freedom of speech and
expression includes the right to communicate effectively and
to as large a population not only in this country but also
abroad, as is feasible. There are no geographical barriers
on
communication. Hence every citizen has a right to use the
best means available for the purpose. At present,
electronic media, viz., T.V. and radio, is the most
effective means of communication. The restrictions which
the electronic media suffers in addition to those suffered
by the print media, are that [i] the airwaves are a public
property and they have to be used for die benefit of the
society at large, [ii] the frequencies are limited and [iii]
media is subject to pre-censorship. The other limitation,
viz., the reasonable restrictions imposed by law made for
the purposes mentioned in Article 19 [2] is common to all
the media. In the present case, it was not and cannot be
the case of the NM that the telecasting of the cricket
matches was not for the benefit of the society at large or
not in the public interest and, therefore, not a proper use
of the public property. It was not the case of the MIB that
it was in violation of the provisions of Article 19 [2].http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 64 of 109
There was nothing to be pre-censored on the grounds
mentioned in Article 19 [2]. As regards the limitation of
resources, since the DD was prepared to’telecast the cricket
matches, but only on its terms it could not plead that there
was no frequency available for telecasting. The DD could
also not have ignored the rights of the viewers which the
High Court was at pains to emphasise while passing its
orders and to which we have also made a reference. The
CAB/BCCI being the organisers of the event had a right to
sell the telecasting rights of its event to any agency.
Assuming that the DD had no frequency to spare for
telecasting the matches, the CAB could certainly enter into
a contract with any agency including a foreign agency to
telecast the said matches through that agency’s frequency
for the viewers in this country [who could have access to
those frequen-
184
cies] as well as for the viewers abroad. The orders passed
by the High Court in effect gave a right to DD to be the
host broadcaster for telecasting in this country and for the
TWI, for telecasting for the viewers outside this country as
well as those viewers in this country who have an access to
the TWI frequency. The order was eminently in the interests
of the viewers whatever its merits on the other aspects of
the matter.
123. The orders passed by the High Court have to be viewed
against the backdrop of the events and the position of law
discussed above. The circumstances in which the High Court
passed the orders and the factual and legal considerations
which weighed with it in passing them speak for themselves.
However, since the cricket matches have already been
telecast, the question of the legality or otherwise of the
orders has become academic and it is not necessary to
pronounce our formal verdict on the same. Hence we refrain
from doing so.
124. We, therefore, hold as follows:
[i] The airwaves or frequencies are a public property.
Their use has to be controlled and regulated by a public
authority in the interests of the public and to prevent the
invasion of their rights. Since the electronic media
involves the use of the airwaves, this factor creates an inbuilt restriction on its use as in the case of any other
public property.
[ii] The right to impart and receive information is a
species of the right of freethe best means of imparting and receiving information and as
such to have an access to telecasting for the purpose.
However, this right to have an access to telecasting has
limitations on account of the use of the public property,
viz., the airwaves, involved in the exercise of the right
and can be controlled and regulated by the public authority.
This limitation imposed by the nature of the public property
involved in the use of the electronic media is in addition
to the restrictions imposed on the right to freedom of
speech and expression under Article 19 [2] of the
Constitution.
[iii] The Central Government shall take immediate steps to
establish an independent autonomous public authority representative of all sections and interests in the society to
control and regulate the use of the airwaves.
[iv] Since the matches have been telecast pursuant to the
impugned order of the High Court, it is not necessary to
decide the correctness of the said order.
[v] The High Court ’will now apportion between the CAB and
the DD the revenues generated by the advertisements on T.V.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 65 of 109
during the telecasting of both the series of the cricket
matches, viz., the Hero Cup, and the International Cricket
Matches played in India from October to December 1994, after
hearing the parties on the subject.
125. The civil appeals are disposed of accordingly.
126. In view of the disposal of the civil appeals, the
writ petition filed by the Cricket Association of Bengal
also stands disposed of accordingly.
185
B.P. JEEVAN REDDY, J.
127. Leave granted in Special Leave Petitions.
128. While I agree broadly with the conclusions arrived
at by my learned brother Sawant,J. in Para 24 of his
judgment, I propose to record my views and conclusions on
the issues arising in these matters in view of their farreaching importance.
129. Cricket is an interesting game. Radio, and more
particularly the television has made it the most popular
game in India. It has acquired tremendous mass appeal.
Television has brought the game into the hearths and homes
of millions of citizens across the country, enhancing its
appeal several-fold. Men, women and children who had no
interest in the game earlier have now become its ardent fans
- all because of its broadcast by radio and television.
This has also attracted the attention of business and
commerce. They see an excellent opportunity of advertising
their products and wares. They are prepared to pay huge
amounts therefor. The cricket clubs which conduct these
cricket matches have come to see an enormous opportunity of
making money through these matches. Previously, their
income depended mainly upon the ticket money. Now, it
probably does not count at all. The real income comes from
the advertisements both in-stadia as well as the spot
advertisements over radio and television. The value of instadia advertisement has increased enormously on account of
its constant exposure on television during the progress of
the game. Lured by this huge revenues, organisers of these
events now propose to sell the broadcasting rights used
compendiously to denote both radio
and television rights - of these events to the highest
bidder, be he foreign agency or a local one. They find that
Doordarshan is not in a position to or willing to pay as
much as the foreign agencies are. Accordingly, they have
sold these rights to foreign agencies. But - and here lies
the rub - broadcasting the event, particularly telecasting,
requires import, installation and operation of certain
equipment by these foreign agencies for which the law
(Indian Telegraph Act) requires a prior permission - licence
- to be granted by Government of India. Earlier, they
wanted uplinking facility too through Videsh Sanchar Nigam
Ltd., a Government of India-owned company. Now they
suggest, it may not be necessary. They say, they can uplink
directly from their earth station installed, or parked, as
the case may be, near the playing field to their designated
communication satellite which will beam it back to earth The
revolution in communications/ information technology is
throwing up new issues for the courts to decide and this is
one of them.
130. The Doordarshan says that all these years it has
been telecasting the cricket events in India and has helped
it popularise. So also is the plea of All India Radio
(AIR). They are Government agencies - departments of
Government. AIR and Doordarshan enjoy a monopoly in this
country in the matter of broadcasting and telecasting. They
cannot think of any other agency doing the same job. Theyhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 66 of 109
are not prepared to reconcile themselves to any other
agency, more particularly, a foreign agency being invited to
broadcast/ telecast these events and they themselves being
asked to negotiate and purchase these rights from such
foreign agencies. They say, they alone should be allowed to
telecast and broadcast these events; that they alone must
act as the ’host broadcaster’, which means they alone shall
generate the host broadcasting signal, which the interested
foreign agencies can purchase from them. They are, of
course, not prepared to pay as much amounts as the foreign
agencies. They are seeking to keep away the foreign
agencies with the help of the legal provisions in force in
this country. If they are successful in that, it is
obvious, they may - they can - dictate terms to the
organisers of these events. If they cannot, the organisers
will be in a position to dictate their terms. But here
again, there is another practical, technological, problem.
The foreign agencies do beam their programmes over Indian
territory too, but for receiving these programmes you
require - period - a dish antenna, which costs quite a bit.
Our TV sets cannot receive these programmes through the
ordinary antenna. Doordarshan alone has the facility of
telecasting programmes which can be received through
ordinary antennae. Millions in this country, who arc deeply
interested in the game, cannot afford these dish antennae
but they want to watch the game and that can be provided
only by the Doordarshan. And this is its relevance.
Doordarshan says, if the organisers choose to sell their
telecasting rights to a foreign agency, they would have
nothing to do with the event. They would not telecast it
themselves. If the foreign agencies can telecast them, well
and good - they can do so in the manner they can, but
Doordarshan would not touch the event even by a long bargepole. But, the Doordarshan complains, they are being
compelled by the courts to telecast these events in public
interest; such orders have been passed in writ petitions
filed by individuals or groups of individuals purporting to
represent public interest; the
1995 (2)
Doordarshan is thus made to lose at both ends - and the
organisers are laughing all the way; telecasting an event
requires good amount of preparation; advertisements have got
to be collected well in time; it cannot be done at the last
minute; without advertisements, telecasting an event results
in substantial loss to public exchequer - it says. These
are the problems which have given rise to these appeals and
writ petitions. They raise inter alia grave constitutional
questions touching the freedom of speech and expression
guaranteed by Article 19(1)(a) of the Constitution. The interpretation of Section 4(1) of the Indian Telegraph Act,
the right to establish private broadcasting and telecasting
facilities/ stations - in short, the, whole gamut of the law
on broadcasting and telecasting has become involved in the
issues arising herein.
FACTUAL CONSPECTUS-
131. Cricket Association of Bengal (CAB) organised an
international cricket tournament under the name and style of
"Hero Cup Tournament" to commemorate and celebrate its
diamond jubilee celebrations. Apart from India, national
teams of West Indies, South Africa, Sri Lanka and Zimbabwe
to participate though the national team of Pakistan withdrew
therefrom having agreed to participate in the first
instance. The Hero Cup Tournament comprised several one day
matches and its attraction was not confined to India but to
all the cricket loving countries which, in effect, means allhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 67 of 109
the commonwealth countries. The tournament was to be held
during the month of November, 1993. Until 1993, Doordarshan
was acting as the host broadcaster in respect of all the
cricket matches played in India. It
187
generated the ’host broadcaster signal’, which signal could
be assigned or sold to foreign television organisations for
being broadcast in their countries. However, an exception
was made by the Government of India - for reasons we do not
know - in respect of an earlier tournament; a foreign agency
was permitted to telecast the matches in addition to
Doordarshan. This exception appears to have set a
precedent. On March 15, 1993 the Cricket Association of
Bengal wrote to Doordarshan asking it to send their detailed
offer which could be any one of the two alternatives
mentioned in the letter. The two alternatives mentioned
were: "(a) that you (Doordarshan) would create ’host broadcaster signal’ and also undertake live telecast of all the
matches in the tournament or (b) that’any other party may
create the ’host broadcaster signal’ and you would only
purchase the rights to telecast in India." The Doordarshan
was requested to clearly spell in their offer the royalty
amount they were willing to pay. It was further made clear
that "in either case it may also please to noted that
foreign T.V. rights will be retained by this association".
The letter also suggested the. manner in which and by which
date the royalty amount was to be paid to it. The offer
from Doordarshan was requested to be sent by March 31, 1993.
On March 18, 1993 Doordarshan wrote to CAB asking it to send
in writing the amount it expects as rights’ fee payable to
it for granting exclusive telecasting rights "without the
Star T.V. getting it". On March 19, 1993, CAB wrote to
Doordarshan stating that "we are agreeable to your creating
the Host Broadcaster Signal and also granting you exclusive
rights for India without the Star TV getting it. And we
would charge you US $ 800,000 (US Dollars Eight Hundred
Thousand only) for the same. We ’Will, however, reserve the
right to sell/licence right worldwide, excluding India and
Star TV. You would be under an obligation to provide the
picture and commentary, subject to the payment of your
technical fees". On March 31, 1993 Doordarshan replied back
stating that the exclusive rights for India without Star TV
getting it may be granted to Doordarshan at a cost of Rupees
one crore. Evidently, because no response was forthwith
coming from CAB, the Doordarshan sent a reminder on May 4,
1993. On May 12, 1993, CAB wrote to Doordarshan. By this
letter, CAB informed Doordarshan that they have now decided
"to sell/allot worldwide TV Rights for the tournament to one
party only, instead of awarding separate areawise and
companywise contracts". In view of this revised decision,
the CAB called upon Doordarshan to let them know whether
Doordarshan is in the deal and if so to submit its detailed
offer for worldwide TV rights by May 17, 1993. The
Doordarshan was given an option either to purchase TV rights
outright or to purchase TV rights on the basis of sharing of
rights fee. Even before receiving this letter of CAB dated
May 12, 1993, Doordarshan addressed a letter to CAB on May
14, 1993 stating that while Doordarshan is still committed
to its bid of Rupees one crore, there is speculation that
Pakistan may not participate in the tournament which would
adversely affect the viewership and commercials. In such an
eventuality, the Doordarshan said, it will have to re-think
its bid.
132. On June 18, 1993 Doordarshan sent a fax message to
CAB referring to the press reports that CAB has entered intohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 68 of 109
amendment with Transworld Image (TWI) for the
188
TV coverage of the said tournament and that, therefore,
Doordarshan has decided not to telecast the tournament
matches organised by paying TWI. It stated that
Doordarshan is not prepared to enter Into any negotiation
with TWI to obtain TV rights for the event. will not
133. Months passed by and then on October 18, 1993, CAB
wrote a detailed letter to Doordarshan. In this letter, CAB
stated that though they were expecting an offer Doordarshan
was offering only a sum of Rupees one crore and that they
have received offers from agencies abroad including TWI
which were much higher than Rupees two crores and that too
in foreign exchange. Since Doordarshan was not interested
in increasing its offer, the letter stated, CAB entered into
a contract with TWI for the telecast of matches. Even so,
the letter stated, the CAB is still keen that Doordarshan
comes forward to telecast the matches since it does not wish
to deprive 800 millions people of this country and that
accordingly they have made TWI agree for co-production with
Doordarshan. It was also stated that Doordarshan should not
claim exclusive rights and the CAB would be at liberty to
sell the rights to Star TV. The letter further stated that
the Doordarshan has not been responding to their letters and
that meanwhile several foreign TV organisations and networks
have been approaching them to telecast their matches to the
Indian audience. The letter also referred to their
information received from some other sources that
Doordarshan is interested in acquiring the rights of tele
cast provided its allowed produce some matches directly and
that matches produced by TWI are made available to
Doordarshan without payment of technical fees. The letter
indicated the matches which Doordarshan would be allowed to
telecast directly and the matches which TWI was to telecast
directly. This offer was, however, subject to certain
conditions which inter alia included the condition that Doordarshan
will not pay access fee to CAB but shall allow four
minutes’ advertising time per hour 9i.e. a total of twenty
eight minutes in seven hours) and that CAB will be at
liberty to sell such time slots to advertisers and receive
the proceeds therefor by itself.
134. On October 27, 1993 Doordarshan replied that they are
not interested in the offer made by CAB in its letter dated
October 18, 1993. They stated that they have never agreed
to any joint production with TWI. On October 29, 1993, CAB
again wrote to Doordarshan expressing their regret at the
decision of the Doordarshan conveyed in their letter dated
September 27, 1993 and stated.......... purely in deference
to your sensitivity about taking a signal from TWI, CAB
would be quite happy to allow you production of your own
picture of matches; you may like to buy rights and licence
from CAB, at a price to be mutually agreed upon. We would
also like to clarify that these rights will be on nonexclusive basis for Indian territory". Doordarshan’s
response was requested at the earliest. On October 30,
1993, Doordarshan confirmed its message sent that day
expressing their refusal to pay any access fee to CAB and
stating further that if Doordarshan has to telecast the
matches live, CAB has to pay technical charges/ production
fee at the rate of Rupees five lacs per match and that
Doordarshan shall have exclusive rights for the signal
generated. There was a further exchange of letters, which
it is unnecessary to refer.
189
135. While the above correspondence was going onhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 69 of 109
between CAB and Doordarshan, the CAB applied for and obtained the following permissions from certain departments.
They are:
(a) On September 2, 1993, the Government of India, Ministry
of Human Resource Development (Department of Youth Affairs
and Sports) wrote to CAB stating that government has no
objection to the proposed visit of the cricket teams of the
participating countries in November 1993. The government
also expressed its no objection to provide the conversion
facility for guarantee money and prize money for foreign
players subject to a particular cell’ing.
(b) Videsh Sanchar Nigam Limited (VSNL) indicated its
charges for providing uplinking facility to INTELSAT and
accepted the said charges when paid by the CAB/TWI.
(c) On October 13, 1993 the Government of India, Ministry
of Home Affairs wrote to CAB expressing its no objection to
the filming of cricket matches and to the use of walkietalkie sets in the playground during the matches. It also
expressed its no objection in principle to the production
and technical staff of TWI visiting India.
(d) On October 20, 1993, the Department of
Telecommunications addressed a letter to the Central Board
of Excise and Customs expressing its no objection to temporary import of electrical production equipment required
for transmission of the said matches between November 7-27,
1993 subject to the organisers coordinating with wireless
planning committee for frequency clearance and also with
VSNI.
(e) On November 2, 1993, the Ministry of Finance
(Department of Revenue) addressed a letter to Collector of
Customs, Sahar Airport, Bombay intimating him of the grant
of exemption from duty for the temporary import of
electrical equipment by TWI, valued at Rs.4.45 crores
subject to certain conditions.
136. Inasmuch as no agreement could be arrived at
between CAB and Doordarshan, the Department of Telecommunications addressed a letter to VSNL on November 3, 1993
(on the eve of the commencement of the matches) to the following effect: "Refer to your letter No. 18IP(TWI)/93-TG
dated 13.10.1993 and discussion of Shri V.Babuji with W.A.
on 2.11.1993 regarding uplink facility for telecasting by
TWI of C.A.B. Jubilee Cricket matches. You are hereby
advised that uplink facilities for this purpose should NOT
repeat NOT be provided for T.W.I. This has the approval of
Chairman (TC) and Secretary, DoT. Kindly confirm receipt."
The VSNL accordingly intimated CAB of its inability to grant
uplinking facility and also returned the amount received
earlier in that behalf
137. Faced with the above developments, the CAB approached
the Calcutta High Court by way of a writ petition being Writ
Petition No.F.M.A.T.Nil of 1993 asserting that inspite of
their obtaining all permissions including the TV uplinking
facilities from VSNL as contemplated by the proviso to
Section 4 of the Indian Telegraph Act, Doordarshan - and
other governmental authorities at the instance of
Doordarshan - are seeking to block and prevent the telecast
of the matches by TWI.
190
The reliefs sought for in the writ petition are the
following:
(1)A mandamus commanding Respondents 1, 3 and 4 (Union of
India, Director General, Information and Broadcasting and
Director General, Doordarshan) and other respondents to
ensure uninterrupted and unobstructed telecast and broadcast
of Hero Cup tournament between November 1028, 1993 and tohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 70 of 109
take all appropriate measures for such telecast and
broadcast.
(ii)A mandamus to the respondents to provide all
arrangements and facilities for telecast and broadcast of
the Hero Cup tournament by the appointed agencies of the
petitioners.
(iii)A mandamus restraining the respondents from- seizing,
tempering with, removing or dealing with any equipment
relating to transmission telecast and broadcast of the
said tournament; and
(iv)Restraining the respondents from interfering or
disrupting in any manner the live transmission and broadcast
of the said tournament by the petitioners and their agents.
138. A learned Single Judge of the Calcutta High Court heard
the matter on November 8, 1993. The learned Judge directed
the matter to come up on the next day with a view to enable
the Advocate for the Union of India to obtain necessary
instructions in the matter. At the same time, he granted an
interim order of injunction in terms of prayers (i) and (j)
in the writ petition effective till the end of the next day.
Prayers (i) and (j) in the writ petition read as follows:
(i) Interim order commanding the
Respondents, their servants, agents, employees
or otherwise to provide all adequate
assistance and cooperation to the Petitioners
and/or their appointed Agency for free and
uninterrupted telecast and broadcast of HERO
CUP TOURNAMENT between 10th November, 1993 and
28th November, 1993;
(i) An interim order of injunction restrain-
ing the Respondents their servants, agents,
employees and others from tempering with,
removing, seizing or dealing with any
equipments relating to transmission telecast
and broadcast of HERO CUP TOURNAMENT belonging
to and/or their appointed agency in any manner
whatsoever.
139. The order made it clear that the said order shall not
prevent Doordarshan from telecasting any match without
affecting any arrangement arrived at between CAB and TWI.
140.On the next day, i.e., November 9, 1993, the learned
Single Judge heard the Advocate for the Union of India but
declined to vacate the interim order passed by him on the
previous day. He further restrained the respondents to the
writ petition from interfering with the frequency lines
given to the Respondent No.10, i.e., TWI as per request made
by VSNL to SAT in view of the fact that VSNL had accepted
the proposal of CAB and TWI and had also received the fees
therefor. On November 11, 1993, the learned Judge passed
another order, on the representation of the learned counsel
for the writ petitioners, that the equipment brought by TWI
for the purpose of production of transmission and
telecasting of cricket matches which was seized by the
Bombay customs authorities, allegedly under the instructions
of the Ministry of Telecommu-
191
nications and Ministry of Information and Broadcasting, be
released. The learned Judge directed that all the
governmental authorities including the customs authorities
shall act in accordance with the interim orders dated 8/9th
November, 1993. Meanwhile, it appears, certain individuals
claiming to be interested in watching cricket matches on
television filed independent writ petitions for a direction
to the Doordarshan to telecast the matches. The learned
Judge expressed the opinion that by their internal fighthttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 71 of 109
between Respondents 1 to 5 on one hand and Respondent No.6
(reference is to the ranking in the writ petition) on the
other, millions of viewers in India are deprived of the
pleasure of watching the matches on television. He then
referred to the representation that at the instance of
Doordarshan and others, All-India Radio (AIR) too has
stopped broadcasting the matches. The learned Judge
observed that there is no reason for AIR to do so and
accordingly directed the Union of India and others including
the Ministry of Information and Broadcasting to broadcast
the remaining cricket matches on AIR as well.
141. Aggrieved by the orders of the learned Single
Judge aforementioned, the Union of India and other
governmental agencies filed a writ appeal (along with an
application for stay) which came up for orders on November
12, 1993 before a Division Bench of the Calcutta High Court.
It was submitted by the learned counsel for the Union of
India that though the Doordarshan is very much keen to
telecast the matches, the CAB has really created problems by
entering into an agreement with TWI. He submitted that
under Section 4 of the Telegraph Act, 1885, the Central
Government has the exclusive provilege of establishing,
maintaining and working telegraph and that the definition of
the expression "telegraph" includes telecast. He submitted
that neither CAB nor TWI have obtained any licence or
permission as contemplated by the proviso to Section 4(1) of
the Indian Telegraph Act and, therefore, TWI cannot telecast
the matches from any place in Indian territory. After
referring to the rival contentions of the parties and the
correspondence that passed between them, the Division Bench
observed that there were two dimensions to the problem
arising before them, viz., (i) the right to telecast by
Doordarshan within India and (2) right of TWI to telecast
outside India for viewers outside India. Having regard to
the urgency of the matter and without going into the merits
of the rival contentions, and keeping in view the interest
of millions of viewers, the Division Bench observed: "we
record, as Doordarshan is inclined to telecast the matches
for the Indian viewers on receipt of Rs.5 lakhs per match
and to enjoy the exclusive right of signalling within the
country being the host broadcaster, we direct the CAB to pay
immediately a sum of Rs.5 lakhs per match for this purpose
and the collection of revenue on account of sponsorship or
otherwise in respect of 28 minutes which is available for
commercial purpose be realised by the Doordarshan on
condition that such amount shall be kept in a separate
account and shall not be dealt with and dispose of the said
amount until further orders" to be passed in the said writ
appeal. The Doordarshan was accordingly directed to
immediately start telecasting the matches. The Bench then
took up the question whether TWI is entitled to telecast the
matches from Indian territory. It noted that no formal
order as required under the proviso to Section 4(1)
192
of the Telegraph Act has been granted in favour of either
CAB or TWI. Purporting to take notice of the national and
international impact of the issue, the Bench directed the
5th appellant before them, viz.., the Secretary, Ministry of
Telecommunications, Government of India "to consider the
facts and circumstances of the case clearly suggesting that
there had already been an implied grant of permission, shall
grant a provisional permission or licence without prejudice
to the rights and contentions of the parties in this appeal
and the writ application and subject to the condition that
Respondent No.6 (5th appellant in appeal) in the writhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 72 of 109
application will be at liberty to impose such reasonable
terms and conditions consistent with the provision to
Section 4(1) of the Indian Telegraph Act having regard to
the peculiar facts and circumstances of the case." (emphasis
added). The Secretary was directed to decide the said
question within three days from the date of the said order
after hearing all the parties before the Division Bench, if
necessary,
142. On November 14, 1993, the matter was again taken up by
the Division Bench, on being mentioned by the parties. The
first problem placed before the Bench was placement of
cameras. The Doordarshan authorities complained that they
have not been given suitable place for the purpose of
telecasting. Doordarshan further submitted that there can
only be one signalling from the field and that in terms of
the orders of the Division Bench, Doordarshan should be the
host broadcaster and TWI should take the signal from
Doordarshan. This request was opposed by the CAB and TWI.
The Bench directed that according to their earlier order the
TWI is entitled to telecast outside the country and to send
their signal accordingly and in case the signalling is
required to be made by TWI separately, the necessary
permission should be given by the Doordarshan and other
competent authorities therefor. Regarding placement of
cameras, certain directions were given.
143. Aggrieved by the orders of the Division Bench dated
12/14th November, 1993, the Secretary, Ministry of Information and Broadcasting, Government of India, Director
General, Doordarshan and Director General, Akashvani filed
two Special Leave Petitions in this court, viz.,
S.L.P.(C)Nos.18532-33 of 993. Simultaneously, CAB filed an
independent writ petition in this court under Article 32 of
the Constitution being W.P.(C) No.836 of 1993. The prayers
in this writ petition are practically the same as are the
prayers in the writ petition filed in the Calcutta High
Court. The additional prayer in this writ petition related
to release of equipment imported by TWI which was detained
by customs authorities at Bombay. On November 15, 1993,
this court directed the Secretary, Ministry of
Telecommunications, Government of India to hold the meeting,
as directed by the Calcutta High Court, at 4.30P.M. on that
very day (November 15, 1993) and communicate the decision
before 7.30P.M. to TWI or its counsel or to CAB or its
counsel. The customs authorities were directed to release
the equipment forthwith. The TWI was, however, restrained
from using the equipment for telecast purpose unless a
licence is issued by the Secretary, Ministry of
Telecommunications in that behalf.
144. Pursuant to the orders of this court, Shri
N.Vithal, Chairman, Telecommunications and Secretary, DoT
passed orders on
193
November 15, 1993 which were brought to the notice of this
court on that very day. This court stayed the said order to
the extent it imposed a condition that TWI will get their
signal from Doordarshan for uplinking through VSNL. The TWI
was permitted to generate their own signal by focussing
their cameras on the ground. It was observed that the said
order shall not be treated as a precedent in future since it
was made in the particular facts and circumstances of that
case.
145. The matches were telecast in accordance with the
directions given by this court and the High Court but the
Special Leave Petitions and the Writ Petition remained
pending. While so, a new development took place in 1994http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 73 of 109
which now requires to be mentioned.
146. In connection with World Cup Matches scheduled for
the year 1996, certain correspondence took place between
Doordarshan and the Board of Cricket Control, India (BCCI).
While the said correspondence was in progress, each side reaffirming their respective stand, BCCI arranged certain
international cricket matches to be played between the
national teams of India, West Indies and New Zealand during
the months of October-December, 1994. BCCI entered into an
agreement with ESPN, a foreign agency, for telecasting all
the cricket matches organised by BCCI in India for the next
five years for a consideration of US $30 million.
Doordarshan was totally excluded. ESPN in turn made an
offer to Doordarshan to purchase the right to telecast the
matches in India from ESPN at a particular consideration
which the Doordarshan declined.
147. On September 20, 1994, we commenced the hearing of
these matters. While the hearing was in progress, the BCCI
filed a writ petition, being Writ Petition No.628 of 1994,
for issuance of a writ, order or direction to the
respondents (Government of India and its various departments
and agencies) to issue and grant the necessary licences
and/or permissions in accordance with law to BCCI or its
appointed agencies for production, transmission and live,
telecast of the ensuing international cricket matches to be
played during the months of October-December, 1994 and to
restrain the Doordarshan and other authorities from
interfering with or obstructing in any manner the
transmission, production, uplinking and telecast of the said
matches. This writ petition was occasioned because the authorities were said to be not permitting ESPN to either
bring in the necessary equipment or to telecast the matches
from the Indian territory. The said writ petition was
withdrawn later and Interlocutory Applications filed by the
BCCI in the pending special leave petition and writ petition
seeking to be impleaded in those matters and for grant of
reliefs similar to those prayed for in Writ Petition No.628
of 1994. Since the hearing was yet to be concluded, we
passed certain orders similar to those passed by this court
earlier - confined, of course, to the matches to be played
during the months of October-December, 1994.
CONTENTIONS URGED BY THE PARTIES AND THE QUESTIONS ARISING
FOR CONSIDERATION.
148. The CAB and BCCI have taken a common stand, were
represented by the same counsel and have also filed common
written submissions. It is not possible to reproduce all
their contentions as put forward in their written
submissions because
194
of the number of pages they run into. It would suffice if I
set out their substance. The submissions are:
(a) CAB and BCCI are non-profit-making sporting
organisations devoted to the promotion of cricket and its
ideals. They organise international cricket tournaments and
series from time to time which call for not only good amount
of Organisation but substantial expense. Payments have to
be made to the members of the teams participating.
Considerable amount of money has to be expended on the
training of players and providing infrastructural facilities
in India. All this requires funds which have to be raised
by these organisations on their own. Accordingly, CAB
entered into an agreement with TWI for telecasting the Hero
Cup Tournament matches to be played in the year 1993. The
necessary permissions were applied for and granted by the
Ministries of Home, Defence, Human Resource Development andhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 74 of 109
Telecommunications. The Ministry of Telecommunications/VSNL
accepted the monies for the purpose of providing uplinking
facilities, which does amount to implied grant of permission
under the proviso to Section 4(1) of the Telegraph Act. In
any event, the acceptance of the monies made it obligatory
upon the ministries to grant the said licence. It is only
on account of the interference and lobbying by Doordarshan
and Ministry of Information and Broadcasting that the other
ministries went back and refused to permit the telecast.
The action of the Doordarshan and the Ministry of
Information and Broadcasting is malafide, unreasonable and
authoritarian besides being illegal.
(b) The game of cricket provides entertainment to public.
It Is a form of expression and is, therefore, included
within the freedom of speech and expression guaranteed by
Article 19(1)(a) of the Constitution. This right includes
the right to telecast and broadcast the matches. This right
belongs to the organiser of the matches which cannot be
interfered with by anyone. The organiser is free to choose
such agency as it thinks appropriate for telecasting and
broadcasting its matches. The Doordarshan or the Ministry
of Information and Broadcasting can claim no right
whatsoever to telecast or broadcast the said matches. If
they wish to do so, they must negotiate with the organiser
and obtain the right. They have no inherent right, much
less a monopoly, in the matter of telecasting and
broadcasting these matches. It is not their events. If the
organisers, CAB and BCCI herein, choose to entrust the said
rights to a foreign agency, such foreign agency is merely an
agency of the organisers and the mere fact that it happens
to be a foreign agency is no ground for depriving the
organisers, who as Indian citizens, are entitled to the
fundamental right guaranteed by Article 19(1)(a). The said
right can be restricted or regulated only by a law made with
reference to the grounds mentioned in clause (2) of Article
19 and on no other ground.
(c) Section 4 of the Indian Telegraph Act must be
understood and construed in the light of Article 19(1)(a).
So read and understood, it is only a regulatory provision.
If a person applies for a licence for telecasting or
broadcasting his speech and expression - in this case the
game of cricket - the appropriate authority is bound to
grant such licence unless it can seek refuge under a law
made in terms of clause (2) of Article 19. The appropriate
authority cannot also impose such conditions as would
195
nullify or defeat the guaranteed freedom. The conditions to
be imposed should be reasonable and relevant to the grant.
(d) Doordarshan or AIR has no monopoly in the matter of
telecasting/broadcasting. Radio and television are only a
medium through which freedom of speech and expression is
expressed. Article 19(2) does not permit any monopoly as
does clause (6) in the matter of Article 19(1)(g). Section
4, which contemplates grant of telegraph licences is itself
destructive of the claim of monopoly by Doordarshan/AIR.
(e) Right to disseminate and receive information is a part
of the right guaranteed by Article 19(1)(a). Televising the
cricket match is a form of dissemination of information.
The mere fact that the organisers earn some income from such
activity does not make it anytheless a form of expression.
It has been held repeatedly by this court in the matter of
freedom of press that the mere fact that publication of
newspaper has also certain business features is no ground to
treat it as a business proposition and that it remains an
activity relatable to Article 19(1)(a). Business activityhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 75 of 109
is not the main but only an incidental activity of
CAB/BCCI,. the main activity being promotion of cricket. It
follows that whenever any citizen of this country seeks to
exercise this right, all necessary permissions have to be
granted by the appropriate authorities. The only ground
upon which it can be refused is with reference to law made
in the interest of one or the other ground mentioned in
Article 19(2) and none else.
(f) With the technological advance and the availability of
a large number of frequencies and channels, being provided
by the increasing number of satellites, the argument of
limited frequencies and/or scarce resource is no longer
tenable. The BCCI does not want allotment of frequency -
not even the uplinking facility, since it has the facility
to uplink directly from the earth station to Gorizon-Russian
satellite with which ESPN has an arrangement All that the
BCCI wants is a licence/permission for importing and
operating the station, wherever the match is played. In
such an eventuality, Doordarshan does not come into picture
at all. Of course, in connection with Hero Cup matches, the
CAB wanted uplinking facility for the reason that it wanted
uplinking to INTELSAT, which is provided only through VSNL.
If an organiser does not want uplinking to INTELSAT, he need
not even approach VSNL. As a matter of fact, major networks
in United States have their own satellites.
149. On the other hand, the submissions on behalf of the
Doordarshan and the Ministry of Information and Broadcasting
are the following:
(i) The CAB or for that matter BCCI did not even apply for
a licence under the proviso to Section 4(1) nor was such licence granted by the appropriate authority at any time or on
any occasion. The grant of permission by other departments
including the collection of fees by VSNL does not amount to
and cannot take the place of licence under the proviso to
Section 4(1). In the absence of such a licence, the
CAB/BCCI or their agents had no right to telecast or
broadcast the matches from the Indian territory. The
argument of implied permission - or the alternate argument
that the authorities were bound to grant such permission -
is misconceived, more par-
196
ticularly, in the absence of even an application for grant
of licence under Section 4 of the Telegraph Act.
(ii) The Calcutta High Court was not right in giving the
directions it did. Particularly the direction given in its
order dated November 12, 1993 to the Secretary, Ministry of
Telecommunications, Government of India, was contrary to
law. While directing the Secretary to consider the facts
and circumstances of the case, the High Court expressly
opined that there was already an implied grant of permission. After expressing the said opinion, the direction to
consider was a mere formality and of little significance.
The charge of malafides and arbitrary and authoritarian
conduct levelled against Doordarshan and the Ministry of
Information and Broadcasting is wholly unfounded and
unsustainable in the facts and circumstances of the case.
In the absence of a licence under Section 4 of the Telegraph
Act, VSNL could not have granted uplinking facility and it
is for that reason that the Department of Telecommunications
wrote its letter dated November 3, 1993 to VSNL.
(iii) Realising the lack of coordination among the various
ministries concerned in granting permission in such a
matter, the Government of India has since taken a policy
decision in the meeting of the Committee of Secretaries held
on November 12, 1993. It has been decided that satellitehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 76 of 109
uplinking from the Indian soil should be within the
exclusive competence of the Ministry of Information and
Broadcasting/ Department of Space/Department of Telecommunications and that similarly the telecast of sports
events shall be within the exclusive purview of the
Doordarshan/Ministry of Information and Broadcasting who in
turn could market their rights to other par-ties on occasion
in whole or in part. It has been further decided that in
respect of any such event, the organiser shall contact the
specified nodal ministry which in turn will coordinate with
all other concerned departments. In short, what may be
called a ’single window system’ has been evolved which is
indeed in the interest of organisers of such events.
(iv) So far as the contention based upon Article 19(1)(a) is
concerned, the contentions of CAB/BCCI are misleading and
over-simplistic. The right guaranteed by Article 19(1)(a)
is not limited to organisers of such sports events. The
said right is guaranteed equally to the broadcaster and the
viewers. Among them, the right of the viewers is the more
important one. The decisions rendered by this court in the
matter of freedom of press are not strictly relevant in the
matter of broadcast/telecast. Telecasting a sports event is
distinct from the event itself It is evident that the CAB/
BCCI are seeking to earn as much as possible by selling the
telecasting rights. It is nothing but commerce and an
activity solely relatable to Article 19(1)(g) and not to
Article 19(1)(a). Inviting bids from all over the world and
selling the telecast rights to the highest bidder has
nothing to do with Article 19(1)(a). In any event, the
predominant element in such activity is that of business.
The interest of general public is, therefore, a relevant
consideration in such matters. The public interest demands
that foreign agencies should not be freely permitted to come
and set up their telecasting facilities in India in an
unrestricted fashion. The occasion for inviting foreign
agencies may possibly arise only if Doordarshan and AIR
refuse to telecast or
197
broadcast the event which they have never done. The
Doordarshan was and is always ready to undertake the
telecasting on reasonable terms but the CAB and BCCI were
more interested in deriving maximum profit from the event.
Doordarshan cannot certainly compete with foreign agencies
who are offering more money not merely for obtaining the
right to telecast these events but with the real and
ultimate object of gaining a foothold in the Indian
telecasting scene. Through these events, the foreign
telecasting organisations, particularly ESPN, are seeking
entry into Indian market and it is for this reason that they
are prepared to pay more. Their interest is something more
than mere commercial.
(v)The present situation is that the Doordarshan and AIR has
got all the facilities of telecasting and broadcasting the
events in India. They have been doing it for over the last
several decades and they have the necessary infrastructure.
The Doordarshan is taking all steps for updating its
equipment and for training its technicians to handle the
latest equipment. It is also entering into tic,-ups with
certain foreign agencies for the purpose. They have always
been prepared for any reasonable terms. Both Doordarshan
and AIR are agencies of the State. Until recently, 97% of
the telecasts made by Doordarshan did not earn any income.
They only involved expense. Its income was derived mainly
from the remaining three per cent of its activities
including sports events like cricket. Recently, there hashttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 77 of 109
been a slight change in policy but the picture largely
remains the same. There is nothing illegitimate or
unreasonable in Doordarshan seeking to earn some money in
the matter of telecast of such events.
(vi)The very nature of television media is such that it
necessarily involves the marshaling of the resource for the
greatest public good. The state monopoly is created as a
device to use the resource for public good. It is not
violative of the right of free speech so long as the
paramount interest of the viewers is subserved and access to
media is governed by the ’fairness doctrine’. Section 4 of
the Telegraph Act cannot be faulted on any ground. Indeed,
in none of the petitions filed by the CAB/BCCI has the
validity of the monopoly of Doordarshan questioned. If the
argument of the CAB/BCCI is accepted it would mean a
proliferation of television stations and telecasting
facilities by all and sundry, both domestic and foreign,
which would not be in the interest of the country. Indeed,
the other side has not placed any material to show that such
free grant of licences would serve the public interest.
(vii)Section 4 of the Telegraph Act is in no way
inconsistent with the monopoly of Doordarshan/AIR. Indeed,
it supports it. The American decisions are not really
relevant to the Indian context. The availability of more or
unlimited number of frequencies or channels is no ground to
permit free and unrestricted import, establishment and
operation of Radio/Television stations, earth stations or
other such equipment.
150. In the light of the contentions advanced, the following
questions arise for consideration:
1.(a) Whether a licence or permission can be deemed to have
been granted to CAB under the proviso to Section 4 of the
Indian Telegraph Act, 1885 for telecasting the Hero Cup
Tournament matches played
198
in November, 1993?
(b) If it is found that there was no such permission, was
it open to the Calcutta High Court to give the impugned
directions?
(c) Whether the charge of malafides and arbitrary and
authoritarian conduct attributed to Doordarshan by CAB
justified?
2.(a) Whether organising a cricket match or other sports
event a form of speech and expression guaranteed by Article
19(1)(a) of the Constitution?
(b) If the question in clause (a) is answered in the
affirmative, the further question is whether the right to
telecast such event is also included within the right of
free speech and expression?
(c) Whether the organiser of such sports events can claim
the right to sell the telecasting rights of such events to
such agency as they think proper and whether they have the
right to compel the government to issue all requisite
permissions, licences and facilities to enable such agency
to telecast the events from the Indian soil? Does the right
in Article 19(1)(a) take in all such rights?
(d) If the organiser of sports does have the rights
mentioned in (c), whether the government is not entitled to
impose any conditions thereon except charging technical fees
or service charges, as the case may be?
3. Whether the impact of Article 19(1)(a) upon Section 4 of
the Telegraph Act is that. whenever a citizen applies for a
licence under the proviso to Section 4(1) it should be
granted unless the refusal can be traced to a law within the
meaning of Article 19(2)?http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 78 of 109
4. Whether the virtual monopoly existing in favour of
Doordarshan in the matter of telecasting from Indian soil
violative of Article 19(1)(a) of the Constitution?
ANSWERS TO THE QUESTIONS
QUESTION NO. 1:
151. The facts narrated in Part-II show that neither
CAB nor BCCI ever applied for a licence under the first
proviso to sub-section (1) of Section 4 of the Telegraph
Act. The permissions obtained from other departments, viz.,
from the Ministry of Human Resource, VSNL, Ministry of Home
Affairs, Ministry of Finance or the Central Board of Excise
and Customs cannot take the place of licence under Section
4(1). Indeed, this fact was recognised by the Division
Bench of the Calcutta High Court and it is for the said
reason that it directed the Secretary to the Telecom
Department to decide the question whether such licence
should be granted to CAB in connection with Hero Cup
matches. But while directing the Secretary to consider the
said question, it chose to make certain observations which
had the effect of practically foreclosing the issue before
the Secretary. The Division Bench observed that the Secretary should proceed on the assumption that there was an
implied grant of permission. As a matter of fact, the
Secretary was directed to grant the licence in so many
words, thus leaving no discretion in him to examine the
matter in accordance with law. It became an empty
formality. I am of the opinion that while asking the Secretary to decide the issue under proviso to
199
Section 4(1), his discretion and judgment could not have
been restricted or forestalled in the above manner. Be that
as it may, in pursuance of the said directions and the
directions of this Court - the Secretary passed certain
orders, the legality of which has now become academic for
the reason that both the events, viz., the Hero Cup matches
as well as the recent international matches (OctoberDecember, 1994) are over. The only thing that remains to be
considered is whether the charge of malafides and arbitrary
and authoritarian conducted attributed to the Doordarshan by
CAB and BCCI is justified. Firstly neither the CAB nor its
foreign agent had applied for or obtained the
licence/permission under Section 4(1). The permissions
granted by other departments are no substitute for the
licence under the proviso to Section 4(1). ’Mere is nothing
to show that seizure of imported equipment by customs
authorities was at the instance of Doordarshan; it appears
to be for non-compliance with the requirements subject to
which permission to import was granted. Secondly, this
issue, in my opinion, cannot be examined in isolation but
must be judged in the light of the entire relevant context.
The Doordarshan did enjoy monopoly of telecasting in India
which is the product of and appears to be sustained by
Section 4(1) of the Telegraph Act. There was no occasion
when a foreign agency was allowed into India without the
consent of or without reference to Doordarshan to telecast
such events. All these years, it was Doordarshan which was
telecasting these matches. On one previous occasion, a
foreign agency was allowed but that was by the Doordarshan
itself or at any rate with the consent of and in cooperation
with the Doordarshan. It is for this reason that the
Doordarshan was asserting its exclusive right to telecast
the event taking place on Indian soil and was not prepared
to purchase the said right from a foreign agency to whom the
CAB and BCCI sold all their rights. It is also worth
noticing that neither CAB nor BCCI or for that matter anyhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 79 of 109
other sports organisation had ever before invited a foreign
agency to telecast or broadcast their events - at any rate,
not without the consent of Doordarshan. The agreement with
TWI entered into by CAB and the agreement with ESPN entered
into by the BCCI were unusual and new developments for all
concerned. Like the bureaucracy everywhere, the Indian
bureaucracy is also perhaps slow in adjusting to the
emerging realities, more particularly when they see a threat
to their power and authority in such developments. In the
circumstances, their objection to a foreign agency coming in
and telecasting such events without even obtaining a licence
under the proviso to Section 4(1) of the Telegraph Act
cannot be termed malafide or arbitrary. So far as the
charge of authoritarianism is concerned, it is equally
unsustainable for the reason that the CAB/ BCCI had no legal
right nor any justification in insisting upon telecasting
their events through foreign agencies without even applying
for and/or obtaining a licence required by law. The
correspondence between them shows that each was trying to
get the better of the other; it was like a game of fencing.
In my opinion, therefore, the charge of malafides or for
that matter, the charge of arbitrary or authoritarian
conduct levelled against the Doordarshan and/or other
governmental authorities is unacceptable in the facts and
circumstances of this case.
QUESTION NOS. 2.3 AND 4:
152. The contentions of Sri Kapil Sibal,
200
learned counsel for the BCCI/CAB have been set out
hereinbefore. What do they really mean and imply? It is
this: the game of cricket provides entertainment to public
at large. The entertainment is organised and provided by
the petitioners. Providing entertainment is a form of
expression and, therefore, covered by Article 19(1)(a) of
the Constitution. Except in accordance with a law made in
terms of clause (2) of Article 19, no restriction can be
placed thereon. The organiser of the game has the right to
telecast and broadcast the game. None can stop it - neither
the Doordarshan nor AIR. The monopoly in favour of
Doordarshan and AIR is inconsistent with Article 19(1)(a) as
well as Section 4 of the Telegraph Act. If Section 4(1) is
construed as conferring or affirming such monopoly, it is
void and unconstitutional may fall foul of Article 19(1)(a).
The first proviso to Section 4(1) is bad for the added
reason that it or the Act does not furnish any guidance in
the matter of exercise of discretion conferred upon the
Central Government thereunder. The organiser of the Same is
free to choose such agency as he thinks appropriate for
telecasting and broadcasting the game - whether domestic or
foreign - and if the organiser asks for a licence under the
proviso to Section 4(1) for importing and operating the
earth station or other equipment for the purpose, it must be
granted. No conditions can be placed while granting such
permits except collection of technical fees. This in substance is the contention. It must be said at once that this
may indeed be the first decision in this country, when such
an argument is being addressed, though such arguments were
raised in certain European courts and the European Court of
Human Rights, with varying results as we shall indicate in a
little while.
153. There may be no difficulty in agreeing that a game
of cricket like any other sports event provides
entertainment - and entertainment is a facet, a part, of
free speech. [See Burstyn v. Wilson (96 L.Ed.1098)], subject
to the caveat that where speech and conduct are joined in ahttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 80 of 109
single course of action, the free speech values must be
balanced against competing societal interests. [Los Angeles
v. Preferred Communications (1986 - 476 U.S.488 = 90
L.Ed.2d.480)]. It attracts a large audience. But the
question is whether the organiser of the event can say that
his freedom of expression takes in the right to telecast it
from the Indian soil without any restrictions or
regulations. The argument really means this, I have a right
to propagate my expression, viz., the game, by such means as
I think appropriate, I may choose to have a television
station of my own or I may invite a foreign agency to do the
job. Whatever I wish, the State must provide to enable me
to propagate my game. I may make money in the process but
that is immaterial’. In effect, this is an assertion of an
absolute and unrestricted right to establish private radio
and television stations, since there is no distinction in
principle between having a mobile earth station (which beams
its programmes to a satellite via VSNL or directly to
another satellite which in turn beams it back to earth) and
a stationary television station. Similarly, there is no
distinction in law between a permanent telecasting facility
and a facility for a given occasion. Question is, is such a
stand acceptable within the framework of our Constitution?
(The question relating to interpretation of Section 4(1), 1
will deal with it separately.) I may clarify that I am
concerned herein with ’live telecast’ which requires the
telecast equipment to be placed at or near the field where
the
201
event is taking place, i.e., telecasting from the Indian
territory. This clarification is appended in view of the
contention urged that nothing prevents the organisers - 1 or
for that matter, anybody - from video recording the event
and then take the video cassette out of this country and
telecast it from outside stations. Undoubtedly, they can do
so. Only thing is that it will not be a live telecast and
it would also not be a telecast from the Indian soil.
154. Article 19(1)(a) declares that all citizens shall
have the right of freedom of speech and expression. Clause
(2) of Article 19, at the same time, provides that nothing
in sub-clause (1) of clause (1) shall affect the operation
of any existing law or prevent the State from making any
law, insofar 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 the
foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement of
an offence. The grounds upon which reasonable restrictions
can be placed upon the freedom of speech and expression are
designed firstly to ensure that the said right is not
exercised in such a manner as to threaten the sovereignty
and integrity of India, security of the State, friendly
relations with the foreign States, public order, decency or
morality. Similarly, the said right cannot be so exercised
as to amount to contempt of court, defamation or incitement
of an offence. Existing laws providing such restrictions
are saved and the State is free to make laws in future
imposing such restrictions. The grounds aforesaid are
conceived in the interest of ensuring and maintaining
conditions in which the said right can meaningfully ad
peacefully be exercised by the citizens of this country.
155. The freedom of speech and expression is a right given
to every citizen of this country and not merely to a few.
No one can exercise his right of speech in such a manner ashttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 81 of 109
to violate another man’s right of speech. One man’s right
to speak ends where the other man’s right to speak begins.
Indeed, it may be the duty of the State to ensure that this
right is available to all in equal measure and that it is
not hijacked by a few to the detriment of the rest. This
obligation flows from the preamble to our Constitution,
which seeks to secure. to all its citizens liberty of
thought, expression, belief and worship. State being a
product of the Constitution is as much committed to this
goal as any citizen of this country. Indeed, this obligation also flows from the injunction in Article 14 that "the
State shall not deny to any person equality before the law"
and the direction in Article 38(2) to the effect: "the
State, shall, in particular - endeavour to eliminate
inequalities in status, facilities and opportunities, not
only amongst individuals but also amongst groups of
people........ Under our Constitutional scheme, the State is
not merely under an obligation to respect the fundamental
rights guaranteed by Part-III but under an equal obligation
to ensure conditions in which those rights can be
meaningfully and effectively enjoyed by one and all.
156.The fundamental significance of this freedom has been
stressed by this Court In a large number of decisions and it
is unnecessary to burden this judgment with those decisions.
Freedom of speech and expression, it has been held
repeatedly, is
202
basic to and indivisible from a democratic polity. It
encompasses freedom of press. It includes right to impart
and receive information. The question now in issue is: does
it include the freedom to broadcast and telecast one’s
views, ideas and opinions and whether, if one wishes to do
so, is the State bound to provide all necessary licences,
permits and facilities therefor? This requires an
examination of the history of broadcasting and telecasting
in this country as well as in certain leading democracies in
the world. In this judgment, the expression "broadcasting
media" wherever used denotes the electronic media of radio
and television now operated by AIR and Doordarshan - and not
any other radio/TV services
INDIA:
157. Though several countries have enacted laws on the
subject of broadcasting, India has not. The Indian
Telegraph Act, enacted in 1885 (as amended from time to
time) is the only enactment relevant in this behalf Clause
(1) of Section 3 defines the expression "telegraph" in the
following words:
""Telegraph" means any appliance, instrument
material or apparatus used or capable of use
for transmission or reception of signs
signals,writing, images and sounds or
intelligence of any nature by wire, visual
or other electromagnetic emissions, Radio
waves or Hertzian waves, galvanic, electric or
magnetic means.
Explanation.- "Radio waves" or "Hertzian
waves" means electromagnetic waves of
frequencies lower than 3,000 giga-cycles per
second propagated in space without artificial
guide.
158. Sub-section (1) of Section 4 which occurs in Part-11
entitled "Privileges and Powers of the Government" confers
the exclusive privilege of establishing, maintaining and
working telegraphs In India upon the Central Government. At
the same time, the first proviso to sub-section empowers thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 82 of 109
Central Government itself to grant a licence on such
conditions and in consideration of such payments as it
thinks fit, to establish, maintain or work a telegraph
within any part of India. Section 4 may be set out for
ready reference:
"4.(1) Within India the Central Government
shall have the exclusive privilege of
establishing, maintaining and
working telegraphs:
Provided that the Central Government may grant
a licence, on such conditions and in
consideration of such payments as it thinks
fit, to any person to establish, maintain or
work a telegraph within any part of India:
Provided further that the Central Government
may, by rules made under this Act and
published in the Official Gazette, permit,
subject to such restrictions and conditions as
it thinks fit, the establishment, maintenance
and working-
(a) of wireless telegraphs on ships within
Indian territorial waters and on aircraft
within or above India, or Indian territorial
waters, and
(b) of telegraphs other Om wireless
telegraphs within any part of India.
(2) The Central Government may, by
notification in the Official Gazette, delegate
to the telegraph authority all or any of its
powers under the first proviso to sub-section
(1).
The exercise by the telegraph author-
203
ity of any power so delegated shall be subject
to such restrictions and conditions the
Central Government may, by the notification,
think fit to impose."
159. The arguments before us have proceeded on the footing
that the radio broadcasting and telecasting fall within the
definition of "telegraph", which means that according to
Section 4, the Central Government has the exclusive
privilege and right of establishing, maintaining and working
the radio and television stations and/or other equipment
meant for the said purpose. The power to grant licence to a
third party for a similar purpose is also vested in the
Central Government itself the monopoly-holder. The first
proviso says that the Central Government may grant such a
licence and if it chooses to grant, it can impose such
conditions and stipulate such payments therefor as it thinks
fit. The section is absolute in terms and as rightly
pointed out by the petitioners’ counsel, it does not provide
any guidance in the matter of grant of licence, viz., in
which matters the Central Government shall grant the licence
and in which matters refuse. The provision must, however,
be understood in the context of and having regard to the
times in which it was enacted.
160. In Life Insurance Corporation of India etc. v. Manubhai
D.Shah (1992 (3) S.C.C.637), Ahmadl,J. (as the learned Chief
Justice then was) held that the refusal of Doordarshan to
telecast a film "Beyond Genocide" on Bhopal gas disaster
(which film was certified by censors and had also received
the Golden Lotus Award) on the ground of lacking moderation,
restraint, fairness and balance is bad. The court noted
that while the Doordarshan conceded that the film depicted
the events faithfully, it failed to point out in whathttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 83 of 109
respects it lacked in moderation etc. Merely because it was
critical of government, it was held, Doordarshan cannot
refuse to telecast it. It was pointed out pertinently that
the refusal to telecast was not based upon the ground that
the list of award-winning films was long and that having
regard to inter se priorities among them, it was not
possible to telecast the film or that the film was not
consistent with the accepted norms evolved by Doordarshan.
In this connection, the learned Judge, speaking for the
Bench, observed:
"The words "freedom of speech and expression"
must, therefore, be broadly construed to
include the freedom to circulate one’s views
by words of mouth or in writing or through
audio-visual instrumentalities. 11,
therefore, includes the right to propagate
one’s views through the print media or through
any other communication channel e.g. The radio
and the television. Every citizen of this
free country, therefore, has the right to air
his or her views through the printing and/or
the electronic media subject of course to
permissible restrictions imposed under Article
19(2) of the Constitution. The print media,
public educators, so VItal to the growth of a
healthy democracy. Freedom to air one’s views
is the lifeline of any democratic institution
and any attempt to stifle, suffocate or gag
this right would sound a death-knell to de-
mocracy and would help usher in autocracy or
dictatorship. It cannot be gainsaid that
modern communication mediums advance public
interest by informing the public of the events
and developments that have taken place and
thereby educating the voters, a role
considered significant for the vibrant
functioning of a democracy. Therefore, in any
set-up, more so in a democratic set-up like
ours, dissemi-
204
nation of news and views for popular con-
sumption is a must and any attempt to deny the
same must be frowned upon unless it falls
within the mischief of Article 19(2) of the
Constitution. It follows that a citizen for
propagation of his or her ideas has a right to
publish for circulation his views in
periodicals, magazines and journals or through
the electronic media since it is well known
that these communication channels are great
purveyors of news and views and make consid-
erable impact on the minds of the readers and
viewers and are known to mould public opinion
on vital issues of national importance. Once
it is conceded, and it cannot indeed be
disputed, that freedom of speech and
expression includes freedom of circulation and
propagation of ideas, there can be no doubt
that the right extends to the citizen being
permitted to use the media to answer the
criticism levelled against the view propagated
by him. Every free citizen has an undoubted
right to lay what sentiments he pleases before
the public; to forbid this, except to the
extent permitted by Article 19(2), would be anhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 84 of 109
inroad on his freedom. This freedom must,
however, be exercised with circumspection and
care must be taken not to trench on the rights
of other citizens or to jeopardise public
interest. It is manifest from Article 19(2)
that the right conferred by Article 19(1)(a)
is subject to’ imposition of reasonable
restrictions in the interest of, amongst
others, public order, decency or morality or
in relation to defamation or incitement to an
offence. It is, therefore, obvious that
subject to reasonable restrictions placed
under Article 19(2) a citizen has a right to
publish, circulate and disseminate his views
and any attempt to thwart or deny the same
would offend Article 19(1)(a)."
(Emphasis added)
161. Similarly, it was held in Odyssey Communications
Pvt.Ltd. v. Lokvidayan Sanghatana & Ors. (1988 Suppl.(1)
S.C.R.486):
"It can no longer be disputed that the right
of a citizen to exhibit films on the
Doordarshan subject to the terms and con-
ditions to be imposed by the Doordarshan is a
part of the fundamental right of freedom of
expression guaranteed under Article 19(1)(a)
of the Constitution of India which can be
curtailed only under circumstances which are
set out in clause (2) of Article 19 of the
Constitution of India. The right is similar
to the right of a citizen to publish his views
through any other media such as newspapers,
magazines, advertisement boardings etc. sub-
ject to the terms and conditions of the owners
of the media. We hasten to add that what we
have observed here does not mean that a
citizen has a fundamental right to establish a
private broadcasting station, or television
centre. On this question, we reserve our
opinion. It has to be decided in an
appropriate case."
The- Court held that since the Union of India and
Doordarshan have failed to produce any material to show that
"the exhibition of the serial was prima facie prejudicial to
community", the refusal cannot be sustained.
162. Be that as it may, by virtue of Section 4, radio and
television have remained a monopoly of the Central
Government Though in the year 1990, Parliament enacted the
’Prasar Bharati (Broadcasting Corporation of India) Act,
1990, it never came into force because the Central Government did not choose to issue a notification appointing
the date (from which the Act shall come into force) as
contemplated by Section 1(3) of the said Act. Be that as it
may, Government monopoly over broadcasting media is nothing
unusual and it is
205
not solely because of the fact that India was not an
independent country, or a democracy, until 1947-50. Even in
well-established democracies, the position has been the
same, to start with, as would be evident from a brief resume
of the broadcasting history in those countries which we may
now proceed to examine. It would help us understand how the
freedom of speech and expression is understood in various
democracies with reference to and in the context of right to
broadcast and telecast - compendiously referred to here-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 85 of 109
inafter as broadcasting.
Broadcasting Law in other Countries:
163. The history of broadcasting in United States and
other European countries has been basically different,
perhaps because of historical factors besides constitutional
principles. In the United States, courts have regarded
freedom of speech almost entirely as a liberty against the
State, while the constitutional courts in Europe have looked
upon it as a value which may sometimes compel the government
to act to ensure the right. Constitutions of most of the
countries in western Europe, e.g Germany, Italy and France
are of post World War-II vintage whereas the First Amendment
to the United States Constitution is more than 200 years
old. These modem European Constitutions cast an obligation
upon their governments to promote broadcasting freedom and
not merely to refrain from interfering with it. The
Constitution of Germany expressly refers to the right to
broadcast as part of freedom of speech and expression. So
far as the United Kingdom is concerned, the development
there has to be understood in the context of its peculiar
constitutional history coupled with the fact that it has no
written constitution. Even so, freedom of thought and
expression has been an abiding faith with that nation. It
has been a refuge for non-conformists and radical thinkers
all over the world - a fact, which does not beg any proof
And yet broadcasting in all these countries was a State or a
public monopoly to start with. Only much later have these
countries started licensing private broadcasting stations.
The main catalyst for this development has been Article 10
of the European Convention on Human Rights which guarantees
freedom of expression to all the citizens of the member
countries and refers specifically to radio and television.
It says:
"10(1) Everyone has the right to freedom of
expression. This right shall include freedom
to hold opinions and to receive and import
information and ideas without interference by
public authority and regardless of frontiers.
This Article shall not prevent States from
requiring the licensing of broadcasting,
television or cinema enterprises.
(2)The exercise of these freedoms, since it
carries with it duties and responsibilities,
may be subject to such formalities,
conditions, restrictions or penalties as are
prescribed by law and are necessary in a
democratic society, in the interests of na-
tional security, territorial integrity or pub-
lic safety, for the prevention of disorder or
crime, for the protection of health or morals,
for the protection of the reputation or rights
of others, for preventing the disclosure of
information received in confidence, or for
maintaining the authority and impartiality of
the judiciary."
(Emphasis added)
More about this provision later.
164. In the United States, of course, radio and television
have been operated by
206
private undertakings from the very beginning. As pointed
out by the United States Supreme Court in Columbia
Broadcasting System v. Democratic National Committee [(1973)
412 U.S.94 - 36 L.Ed.2d.772], at the advent of the radio,
the government had a choice either to opt for governmenthttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 86 of 109
monopoly or government control and that it chose the latter.
The role of the government has been described as one of an
overseer" and that of the licensee as a "public trustee".
The position obtaining in each country may now be noted
briefly.
UNITED KINGDOM*:
165. The first licence to operate eight radio stations was
granted to British Broadcasting Company (BBC) in 1922. In
1927, British Broadcasting Company was replaced by British
Broadcasting Corporation. The Sykes Committee, appointed in
1920s, considered the overall state control of radio
essential in view of its influence on public opinion but
rejected operation of the medium by the State. The other
committee appointed in 1920s, viz., Crawford Committee, also
recommended that radio should remain a public monopoly in
contra-distinction to the United States system of ’free and
uncontrolled transmission’. It, however, recommended that
the government company should be reorganised as a commission
either under
*This part of the judgment dealing with the
broadcasting law obtaining in United Kingdom
and other European countries is drawn largely
from the Book "Broadcasting Law A Comparative
Study" (1993 Edition) by Eric Barendt, Goodman
Professor of Media Law, University College,
London and his article "The influence of the
German and Italian Constitutional courts on
their National Broadcasting systems",
published in ’Public Law, Spring 1991’.
a statute or as a public company limited by guarantee. In
1927, a Royal Charter was granted with a view to ensure the
independence of BBC, which charter has been renewed from
time to time. It prohibits the BBC from expressing its own
opinion on current political and social issues and from
receiving revenue from advertisement or commercial
sponsorship. The power to give directions is reserved to
the government. In 1935, the Corporation was licensed by
the Post-Master General to provide a public television
service, which was introduced in the following year. The
monopoly of BBC continued till 1954. In that year, the
British Parliament enacted the Television Act, 1954 establishing the Independent Television Authority (ITA) to
provide television broadcasting services additional to those
of the BBC. The function of the Authority was to enter into
contracts with programme companies for the broadcast of
commercial programmes. In 1972, ITA was redesignated as
Independent Broadcasting Authority (IBA). In 1984, IBA
acquired powers in respect of direct broadcasting by
satellite.
166.The Peacock Committee appointed in 1980s to examine the
question whether BBC should be compelled to take advertising, rejected the idea but advocated deregulation of
radio and television. The government accepted the proposal
and, accordingly, the Parliament enacted the Broadcasting
Act, 1990. Section 1 established the Independent Television
Commission (ITC) with effect from January 1, 1991 in the
place of IBA and the Cable Authority. The ITC is vested
with the power to licence and regulate non-BBC
207
television services including Channels 3 and 4 and the
proposed Channel 5 besides cable and satellite services.
Section 2 requires that the ITC discharge its functions in
the manner it considers best to ensure a wide range of TV
programme services and also to ensure that the programmes
are of high quality and cater to a variety of tastes andhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 87 of 109
interests. In 1991, ITV decided to grant 16 new channels 3
licences to private bodies with effect from January 1, 1993.
The allocation was to be made by calling for tenders - the
highest bidder getting it - subject, of course, to the
bidder satisfying the qualifying criteria. The eligibility
criteria prescribed guards against granting licences to nonEEC nationals, political bodies, religious bodies and advertising agencies. It also guards against concentration of
these licences in the hands of few individuals or bodies.
Sections 6 and 7 impose strict programme controls on the
licencees while Sections 8 and 9 regulate the
advertisements. The programme controls include political
impartiality, eschewing of excessive violence, due regard
for decency and good taste among others. The programmes
should not also offend religious feelings of any community.
Section 10 provides for government control over licenced
services. Section 11 provides for monitoring by ITC of the
programmes broadcast by licenced services. It is obvious
that this Act has no application to BBC, which is governed
by the Royal Charter, as stated hereinabove. The Act has
also set up a Radio Authority to exercise comparable powers
over radio services. It is said that this Act ultimately
imposed as many restraints on broadcasters freedom as there
were in force earlier.
FRANCE:
167. Para II of the Declaration of the Rights of Man adopted
by the National Assembly in 1789** - affirmed in the preamble to the Constitution of the Fifth Republic (1958) and
treated as binding on all branches of the government - guarantees freedom of dissemination of thought and opinion.
This provision - the child of the French Revolution - has
greatly influenced the development of broadcasting freedom
in that country. Initially, licences were granted to
private radio stations to function along side the public
network but with the out-break of the WorldWar 11, the
licences of private broadcasters were suspended and later
revoked. From 1945 to 1982, broadcasting remained a State
monopoly. The government exercised tight control over the
radio. An ordinance issued in 1959 legalised government
control. In 1964, public monopoly was re-affirmed by law.
In 1974, the State Organisation, Office de la
radiodiffusion-television Francaise (ORTF) was divided into
seven separate institutions catering to radio and television
broadcasts in the country. This was done with a
**Para 11 reads: "XI. The unrestrained com-
munication of thoughts and opinions being one
of the most precious rights of man, every
citizen may speak, write and publish freely,
provided he is responsible for the abuse of
this liberty in cases determined by law. " At
the same time, Para 4 sets out the limitation
implicit in all freedoms comprised in the
concept of political liberty. It
says: ....... The exercise of the natural
rights of every man has no other limits than
those which are necessary to secure to every
other man the free exercise of the same
rights; and these limits are determinable only
by the law."
208
view to introduce competition among the public television
companies. The government exercised a significant degree of
control over all these units. No private broadcasting was
allowed since broadcasting services were regarded as
essentially public. The State monopoly in the matter ofhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 88 of 109
broadcasting was upheld by Conseil constitutionnel
(Constitutional Court) in 1978. In 1982, however, a
significant change took place. The State recognised the
right of citizens to have a "free and pluralist broadcasting
system". Even so, permission to institute a private
broadcasting station was dependent on prior authorization of
the government. This provision was upheld by the Conseil
Constitutionnel as compatible with Para 11 of the
Declaration of the Rights of Man, In 1985, the law was
amended providing for private broadcasting and television
stations. In 1986, the government sought to privatise one
of the public television channels which immediately provoked
controversy. The Conseil constitutionnel ruled (in 1986)
that principle of pluralism of sources of opinion was one of
constitutional significance, against which the concrete
provisions of the proposed Bill must be assessed II observed
that access to a variety of views was necessary for the effective guarantee of the freedom of speech protected by the
Declaration of the Rights of man. At the same time, it
found nothing wrong with the decision to favour private
television but held that it was for the Parliament to
determine the appropriate structure for broadcasting in the
light of freedom of communication and other relevant
constitutional values, like public order, rights of other
citizens and pluralism of opinion. The law was accordingly
amended. Wherever private broadcasting is allowed it is
governed by a contract between the applicant and the
administrative authority.
GERMANY.
168. After the occupying authorities withdrew from West
Germany in 1949, the pattern that emerged was one of nine
regional public broadcasting organisations. They formed
into an association, the Arbeitsgemeinschaft der offentlichtechtlichen Rundfunkanstalten der Bundersrepublik
Deutschland (ARD), in 1950 and under its auspices the first
public television channel was formed. Article 5 of the
Basic Law of 1949 states, "(E)very one shall have the right
freely to express and disseminate his opinion by speech,
writing, and pictures and freely to inform himself from
generally accessible sources. Freedom of the press and
freedom of reporting by means of broadcasts and films are
guaranteed. There shall be no censorship." In a decision
rendered in 1961, the Federal Constitutional Court held
inter alia that in view of the shortage of frequencies and
the heavy cost involved in establishing a TV station, public
broadcasting monopoly is justifiable, though not constitutionally mandatory. It held further that broadcasting,
whether public or private, should not be dominated by State
or by commercial forces and should be open for the
transmission of a wide variety of opinion. [(12 BVerfGE 205-
196)]. There was a long battle before private commercial
broadcasting was introduced. Many of the States in West
Germany were opposed to private commercial broadcasting.
The Constitutional Court ruled in 1981 The Third Television
Case - 57 BVer EfG 295) that private broadcasting was not
inconsistent with Article 5 of the Basic Law but it observed
that unlike the press, private
209
broadcasting should not be left to market forces in the
interest of ensuring that a wide variety of voices enjoy
access to it. It recognised that the regulation of private
broadcasting can be different in content from the regulation
applying to public broadcasting. In course of time, private
television companies came into existence but in the
beginning they were confined to cable. In the Fourthhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 89 of 109
Television Case decided in 1986 (73 BVerfGE 118), the court
held in the present circumstances, the principal public
service functions of broadcastings are the responsibility of
the public institutions whereas private broadcasters may be
subjected to less onerous programme restrictions. Only
after the decision of the Constitutional Court in 1987 were
the private companies allocated terrestrial frequencies. It
appears that notwithstanding the establishment of private
companies , it is the public broadcasting companies which
dominate the scene and attract more advertisement revenue.
The German constitutional court has exercised enormous
influence in shaping the contours of broadcasting law. It
has interpreted the broadcasting freedom in a manner wholly
different from the United States Supreme Court casting an
obligation upon the State to act to ensure the right to all
citizens.
ITALY:
169. In Italy too, the broadcasting was under State control,
to start with. In 1944, Radio audizioni Italia (RAI) was
created having a monopoly in broadcasting. It still holds
the concession for public radio and broadcasting. Article
21(1) of the Italian Constitution, 1947 provides that
"(E)veryone has the right to express himself freely
verbally, in writing, and by any other means". This
provision was relied upon by potential private broadcasters
in support of their claim for setting up private commercial
stations. In a decision rendered in 1960 (Decision 59/60
(1960) Giurisprudenza Constituzionale 759) the
Constitutional Court of Italy upheld RAI’s monopoly with
reference to Article 43 of the Constitution which enables
legislation to reserve (or expropriate subject to compensation) for the state, businesses which are concerned
with vital public service or are natural monopolies and
which are of pre-eminent public interest. It denied the
right of applicants to establish private radio or television
stations. it-opined that private broadcasting would
inevitably be dominated by a few corporations and,
therefore, not in public interest, an aspect which was
reaffirmed in a decision in 1974. (Decision 225/74 (1974)
Giurisprudenza Constituzionale 1775). It held that
broadcasting provides an essential service in a democratic
society and could legitimately be reserved for a public
institution, provided certain conditions were met. In
particular, it said that radio and television should be put
under parliamentary, and not executive control to ensure
their independence and that rules should be drawn up to
guarantee the access of significant political and social
groups. Accordingly, the Parliament enacted the Legge in
April, 1975 which provided for a greater control by a
Parliamentary Commission over the programmes and their
content. In 1976, the Constitutional Court ruled (Decision
202/76 (1976) Giurisprudenza Constituzionale 1276) that
while at the national level, the monopoly of RAI is valid,
at the local level, it is not, since at the local level
there is no danger of private monopolies or oligopolies
emerging a hope belied by subsequent developments.
210
This ambiguous decision resulted in establishment of a large
number of private radio stations in Italy notwithstanding
the re-affirmation of RAI’s national monopoly in 1981 by the
court. One of the major rather the largest - private
television and radio networks which thus came into existence
is the $7 billion Fininvest Company, controlled by Silvio
Berlusconi (the Ex-Prime Minister of Italy, who resigned in
December, 1994). It owns three major TV networks in Italy.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 90 of 109
This development prompted the Constitutional Court, in 1988,
to call for a prompt and comprehensive regulation of private
broadcasting containing adequate anti-trust and other antimonopolistic provisions to safeguard pluralism.
Accordingly, a law was made in 1990 which devised a system
for licensing private radio and television stations.
AUSTRIA:
170. Broadcasting has been a State monopoly in Austria
throughout. This monopoly was challenged -as inconsistent
with Article IO of the European Convention before the
Austrian Constitutional Court which repelled the attack with
reference to clause (2) of Article 10. It held that
inasmuch as a law made by the State, viz., Constitutional
Broadcasting Law had introduced a licencing system within
the meaning of the last sentence in Article 10(1) of the
Convention and since the said system was intended to secure
objectivity and diversity of opinions, no further need be
done. It held that the Austrian Broadcasting Corporation
with the status of an autonomous public law corporation is a
sufficient compliance not only with the national laws but
also with Article 10 of the Convention and that granting
licence to every applicant would defear the objectives of
pluralism, diversity of views and range of opinions
underlying the said Austrian law. Several individuals and
organisations, who were refused television/radio licences,
lodged complaints with the European Human Rights Commission,
which referred the matter for the opinion of the European
Human Rights Court [EHRC] (at Strasbourg). The court held
that the refusal to consider the applications for licence
amounted to a violation of Article 10 (Informationsverein
Lentia & Ors. v. Austria - 15 Human Rights law Journal 31 -
judgment dated 24th November, 1993). The reasoning of the
Court is to be found in paragraphs 38 and 39 which read
thus:
"38. The Court has frequently stressed the
fundamental role of freedom of expression in a
democratic society, in particular where,
through the press, it serves to impart
information and ideas of general interest,
which the public is moreover entitled to
receive (see, for example, mutatis mutandis,
the Observer and Guardian v. the United
Kingdom judgment of 26 November 1991, Series A
no.216, pp. 29-30, $59 - 13 HRLJ 16 (1992)).
Such an undertaking cannot be successfully
accomplished unless it is grounded in the
principle of pluralism, of which the State is
the ultimate guarantor. This observation is
especially valid in relation to audio-visual
media, whose programmes are often broadcast
very widely.
39. 0 ’all the means of ensuring that these
values are respected, a public monopoly is the
one which imposes the greatest restrictions on
the freedom of expression, namely the total
impossibility of broadcasting otherwise than
through a national station and, in some cases,
to a very limited extent through a local cable
station. The far reaching character of such
211
restrictions means that they can only be
justified where they correspond to a pressing
need.
As a result of the technical progress made
over the last decades, justification of thesehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 91 of 109
restrictions can no longer today be found in
considerations relating to the number of
frequencies and channels available; the
Government accepted this. Secondly, for the
purposes of the present case they have lost
much of their raison d’etre in view of the
multiplication of foreign programmes aimed at
Austrian audiences and the decision of the
Administrative Court to recognise the
lawfulness of their retransmission by cable
(see paragraph 21 above). Finally and above
all, it cannot be argued that there are no
equivalent less restrictive solutions; it is
sufficient by way of example to cite the
practice of certain countries which either
issue licences subject to specified conditions
of variable content or make provision for
forms of private participation in the ac-
tivities of the national corporation."
The Court then dealt with the argument that "Austrian market
was too small to sustain a sufficient number of stations to
avoid regroupings and the constitution of the private
monopolies" and rejected it in the following words:
"42. The court is not persuaded by the
Government’s argument. Their assertions are
contradicted by the experience of several
European States, of a comparable size of
Austria, in which the coexistence of private
and public stations, according to rules which
vary from country to country and accompanied
by measures preventing the development of
private monopolies, shows the fears expressed
to be groundless."
171. The Court finally concluded;
"43. In short, like the Commission, the Court
considers that the interferences in issue were
disproportionate to the aim pursued and were,
accordingly, not necessary in a democratic
society. There has therefore been a violation
of Article IO."
172. In our opinion, the reasoning of EHRC is unacceptable
for various reasons which we shall set out at the proper
stage.
OTHER WESTERN EUROPEAN COUNTRIES.
173. In Denmark, private broadcasting was permitted by
Legislation enacted in 1985. In Portugal, private
broadcasting was allowed only in 1989, by amending the
Constitution. In Switzerland too, private broadcasting has
been allowed only recently. Private broadcasting is,
however, subject to strict programme control.
UNITED STATES OF AMERICA:
174. In the United States, there was no law regulating
the establishment and working of broadcasting companies till
1927. In that year, Radio Act, 1927 was enacted by Congress
creating the Federal Radio Commission with authority to
grant three year licences to operate radio stations on an
assigned frequency. In the year 1934, the Congress enacted
the Federal Communications Act. This Act placed the telephone and wireless communications under one authority, viz.,
Federal Communications Commission (FCC). The Commission had
the authority to assign frequency for particular areas, to
prescribe the nature of the service to be provided for
different types of stations and to decide licence applications. The only guideline issued to the Commission was
that it should exercise its powers keeping in view the "pub-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 92 of 109
212
lic interest, convenience and necessity".. It is under these
guidelines that the FCC evolved the Fairness Doctrine in
1949. Notwithstanding the First Amendment, the United
States Supreme Court held that the freedom of speech did not
entail a right to broadcast without a licence. It held:
"unlike other modes of expression, radio inherently is not
available to all" vide N.B.C. v. U.S. [319 US 190 (1943)].
The Fairness Doctrine was approved by the Supreme Court in
Red Lion Broadcasting Company v. F.C.C. [395 US 367 (1969)].
The Court observed: "Although broadcasting is clearly a
medium affected by a First Amendment interest, differences
in the characteristics of news media justify differences in
the First Amendment standards applied to them Where there
are substantially more individuals who want to broadcast
than there are frequencies to allocate, it is idle lo posit
an unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or
publish ... those who are licenced stand no better than
those to whom licences are refused A license permits
broadcasting, but the licensee has no constitutional right
to be the one who holds the license or to monopolize a radio
frequency to the exclusion of his fellow citizens .... The
people as a whole retain their interest in free speech by
radio and their collective right to have the medium function
consistently with the ends and purposes of the First
Amendment. It is the right of the viewers and listeners,
not the right of the broadcasters which is paramount. It is
the right of the public to receive suitable access to
social, political, esthetic moral and other ideas and experiences which is crucial here In 1967’70, public
broadcasting was established on a national basis through the
institution of the Corporation for Public Broadcasting
(CPB), viz., the Public Broadcasting Service (PBS) for
television and National radio service. The CPB is funded by
appropriations made by the Congress. In 1978, the Supreme
Court affirmed in FCC. v. National Citizens Committee for
Broadcasting (436 U.S.775) that:
"in making [its] licensing decisions between
competing applicants, the Commission has long
given "primary significance" to
"diversification of control of the media of
mass communications." This policy is
consistent with the statutory scheme and with
the First Amendment goal of achieving "the
widest possible dissemination of information
from diverse and antagonistic sources."*** Pe-
titioners argue that the regulations are in-
valid because they seriously restrict the
opportunities for expression of both broad-
casters and newspapers. But as we stated in
Red Lion, "to deny a station licence because
’the public interest’ requires it ’is not a
denial of free speech’." The regulations are a
reasonable means of promoting the public
interest in diversified mass communications;
thus they do not violate the First Amendment
rights of those who will be denied broadcast
licenses pursuant to them.
175. It is significant to notice the statement that "to deny
a station licence because ’the public interest’ requires it
’is not a denial of free speech"’ - a holding to which we
shall have occasion to advert to later. Yet another
relevant observation of Burger,C.J. is to the following
effect:http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 93 of 109
*** As far back as 1948, the Court held in US
v. Paramount Pictures (92 L. Ed. 126 1) that
no monopoly can be countenanced in the matter
of First Amendment rights.
213
"The Commission (F.C.C.) was justified in
concluding that the public interest in
providing access lo market place of "ideas and
expressions " would scarcely be served by a
system so heavily weighted in favour of the
financially affluent or those with access to
wealth........
(Emphasis added)
176. In 1970s, however, it was argued that programming
restraints were contrary to the First Amendment besides
being unproductive. and that broadcasting licencees should
enjoy the same rights as newspaper editors and owners. In
course of time. the government moved towards deregulation of
broadcasting and ultimately in 1987 the Fairness doctrine
was repealed by FCC. An attempt by Congress to restore the
said rule by an enactment was vetoed by the President.
177. Having examined the systems obtaining in the United
States and major west European countries, Eric Barendt says:
"These developments illustrate the widely
divergent approaches to broadcasting
regulation in the United States and (for the
most part) in Europe. This is partly an
aspect of the more sceptical attitude to
government and to administrative regulation
which has prevailed in the USA, at any rate.
in the last twenty years. The First Amendment
has been interpreted as conferring on
broadcasters rights, which have not been
derived from the comparable provisions in
continental countries. Another explanation is
that in the USA private commercial
broadcasting enjoyed for a long time a de
facto monopoly, while in Britain, France,
Germany and Italy there was a public monopoly.
It is interesting that there has been a
continuity to US broadcasting law, which
(perhaps sadly) is not found in these European
jurisdictions. The Federal Communications
Act has remained in force since its passage in
1934, though it has been amended on a handful
of occasions."
(Eric Barendt: Broadcasting Law - Page31)
178. We may now proceed to examine what does "Broadcasting
freedom" mean and signify?
BROADCASTING FREEDOM Meaning and content of.
179. There is little doubt that broadcasting freedom is
implicit in the freedom of speech and expression. The
European Court of Human Rights also has taken the view that
broadcasting like press is covered by Article 10 of the
Convention guaranteeing the right to freedom of expression.
But the question is what does broadcasting freedom mean?
Broadly speaking, broadcasting freedom can be said to have
four facets, (a) freedom of the broadcaster, (b) freedom of
the listeners/viewers to a variety of view and plurality of
opinion, (c) right of the citizens and groups of citizens to
have access to the broadcasting media, and (d) the right to
establish private radio/TV stations. We shall examine them
under separate heads.
(a) FREEDOM OF THE BROADCASTER:
180. The first facet of the broadcasting freedom is freedomhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 94 of 109
from State or Governmental control, in particular from the
censorship by the Government. As the Peacock Committee put
it, pre-publication censorship has no place in a free
society. Pre-publication censorship is prohibited in Germany by Article 5 of the Basic Law. This principle applies
in equal measure both to public and private broadcasting.
It is, however, necessary to clarify here that public
214
broadcasting is not to be equated with State broadcasting.
Both are distinct. Broadcasting freedom in the case of public broadcasting means the composition of these bodies in a
manner so as to genuinely guarantee their independence. In
Germany, the Constitutional Court has ruled that freedom
from State control requires the legislature to frame some
basic rules to ensure that Government is unable to exercise
any influence over the selection, content or scheduling of
programmes. Laws providing to the contrary were held bad.
Indeed, the court also enunciated certain guidelines for the
composition and selection of the independent broadcasting
authorities on the ground that such a course is necessary to
ensure freedom from Government control. It should be noted
that an unfettered freedom for licensees to select which
programmes appear on their schedule to the complete
disregard of the interests of public appears more like a
property right than an attribute of freedom of speech. It
is for this reason that the German constitutional court
opined in 1981 (57 BVerfGE 295) and in 1987 (73 BVerfGE II
8) that television and radio is an instrument of freedom
serving the more fundamental freedom of speech in the interest of both broadcasters and the public. The court
opined that broadcasting freedom is to be protected insofar
as it’s exercise promotes the goals of free speech, i.e., an
informed democracy and lively discussion of a variety of
views. The freedom of broadcaster cannot be understood as
merely an immunity from government intervention but must be
understood as a freedom to safeguard free speech right of
-all the people without being dominated either by the State
or any commercial group. This is also the view taken by the
Italian and French courts.
(b) LISTENERS/VIEWERS RIGHT.
181. Broadcasting freedom involves and includes the right of
the viewers and listeners who retain their interest in free
speech. It is on this basis that the European courts have
taken the view that restraints on freedom of broadcasters
are justifiable on the very ground of free speech. It has
been held that freedom of expression includes the right to
receive information and ideas as well as freedom to impart
them. "The free speech interests of viewers and listeners
in exposure to a wide variety of material can best be safeguarded by the imposition of programme standards, limiting
the freedom of radio and television companies. What is
important according to this perspective is that the
broadcasting institutions are free to discharge their
responsibilities of providing the public with a balanced
range of programmes and a variety of views. These free
speech goals require positive legislative provision to
prevent the domination of the broadcasting authorities by
the government or by private corporations and advertisers,
and perhaps for securing impartiality........
182. The Fairness Doctrine evolved by FCC and approved by
the United States Supreme Court in Red Lion protected the
interest of persons by providing a right of reply to
personal attacks. But difficulties have arisen in the
matter of enforcing the listeners’/viewers’ rights through
courts.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 95 of 109
(c) ACCESS TO BROADCASTING:
183. The third facet of broadcasting freedom is the freedom
of individuals and groups of individuals to have access to
broadcasting media to express their views.
215
The first argument in support of this theory is that public
is entitled to hear range of opinions held by different
groups so that it can make sensible choices on political and
social issues. In particular, these views should be exposed
on television, the most important contemporary medium. It
is indeed the interest of audience that justified the
imposition of impartiality rules and positive programme
standards upon the broadcasters. The theoretical foundation
for the claim for access to broadcasting is that freedom of
speech means the freedom to communicate effectively to a
mass audience which means through mass media. This is also
the view taken by our court as pointed out supra.
184. An important decision on this as’pect is that of the
United States Supreme Court in Columbia Broadcasting System
v. Democratic National Committee [412 US 94 (1973)]. The
CBS denied to Democrats and a group campaigning for peace in
Vietnam any advertising time to comment upon contemporary
political issues. Its refusal was upheld by the FCC, but
the District of Columbia Circuit Court of Appeals ruled that
an absolute ban on short pre-paid editorial advertisements
infringed the First Amendment and constituted impermissible
discrimination. The Supreme Court, however, allowed the
plea of CBS holding that recognition of a right of access of
citizens and groups would be inconsistent with the
broadcasters’ freedom. They observed that if such right
were to be recognised, wealthy individuals and pressure
groups would have greater opportunities to purchase
advertising time. It rejected the "view that every potential
speaker is ’the best judge of what the listening public
ought to hear ". (Burger,C.J.) Some Judges expressed the
opinion that the broadcaster enjoyed the same First
Amendment rights as the newspapers whereas the minority
represented by Brennan and Marshall,JJ. was of the view that
freedom of groups and individuals to effective expression
justified recognition of some access rights to radio and
television.
185. It appears that this aspect has been debated more
intensively in Italy. The Italian constitutional court held
that the monopoly of RAI can be justified only on certain
conditions, one of them being that access must be allowed so
far as possible to the political, religious and social
groups, representing various strands of opinion in society.
It opined that statutory provision for access was required
by Article 21 of the Constitution guaranteeing freedom of
expression. The Italian courts viewed access as a goal or a
policy rather than a matter- of fundamental right while at
the same time protecting the individual’s right of reply.
On this aspect, Barendt says: There are also practical
objections to access rights. It may be very difficult to
decide, for example, which group are to be given access, and
when and how often such programmes are shown. There is a
danger some groups will be unduly privileged........
(d)THE RIGHTS TO ESTABLISH PRIVATE BROADCASTING STATIONS:
186. The French Broadcasting Laws of 1982 and 1989 limit the
right of citizens to establish private broadcasting stations
in the light of the necessity to respect individual rights,
to safeguard pluralism of opinion and to protect public
interests such as national security and public order. No
private radio or television channel or sta-
216http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 96 of 109
tion can be established without prior authorisation from the
regulatory body, Conseil superieur de l’audiovisuel. In
Britain, the ITC and the Radio Authority must grant the
necessary licence for establishing a private television or
radio station. In none of the European countries is there
an unregulated right to establish private radio/television
station. It is governed by law. Even in United States, it
requires a licence from FCC.
187. Let us examine the position obtaining in Italy and
Germany where constitutional provisions corresponding to
Article 19(1)(a) - indeed more explicit in the case of
Germany - obtain. Notwithstanding Article 21, referred to
hereinbefore, the Italian Constitutional Court continues to
hold that public monopoly of broadcasting is justified,
atleast at national level till adequate anti-trust laws are
enacted to prevent the development of private media oligopolies. In fact, this principle has been applied in the
case of local broadcasting and private broadcasting allowed
at local level. The Italian Constitutional Court is of the
view that Article 21 of the Italian Constitution does no
doubt confer right to speak freely but this right is to be
exercised by "using means already at one’s disposal, not a
right to use public property, such as the airwaves ". The
analogy with the right to establish private schools was held
to be a weak one and rejected by the Constitutional Court.
More particularly, it is of the view that it is impossible
to justify recognition of a right which only a handful of
individuals and media companies can enjoy in practice.
188. In Germany too, the Constitutional Court has not
recognised a right in the citizens to establish private
television/radio stations at their choice. The question was
left open in what is called the Third Television case. This
question has, however, lost its significance in view of the
laws made in 1980s permitting private broadcasting. What is
relevant is that even after the enactment of the said laws,
the Constitutional Court held in Sixth Television case
(decided in 1991) that establishment of private broadcasting
stations is not a matter of right but a matter for the State
(legislature) to decide. If the State, legislation does
permit such private broadcasting, it has been held at the
same time, it cannot impose onerous programme and
advertising restrictions upon them so as to imperil their
existence.
189. So far as the United States is concerned,where
licencing of private broadcasting stations has been in vogue
since the very beginning, the Supreme Court said in C.B.S.
v. Democratic Committee [36 L.Ed.2d.772 (1973)] that
"(B)ecause the broadcast media utilize a valuable and limited public resource, there is also present an unusual order
of First Amendment values". It then affirmed the holding in
Red Lion that "no one has a First Amendment right to a
license or to monopolize a radio frequency; to deny a
station license because ’the public interest’ requires it
’is not a denial of free speech ... ****. The
**** It is true that reference to "the public
interest" in the above extract must be under-
stood in the light of the guidance provided to
F.C.C., which inter alia directs the F.C.C. to
perform its functions consistent with public
interest, the fact yet remains that even the
guidance so provided was understood to be
within the ambit of First Amendment and
consistent with the free speech right guaran-
teed by it. It was held in National Broad-
casting Company v. United States (1943 319http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 97 of 109
U.S. 190) that the guidance provided to F.C.C.
to exercise its powers "as public convenience,
interest or necessity requires" did not
violate the First Amendment.
217
court also affirmed that "it is idle to posit an
unabridgeable First Amendment right to broadcast comparable
to the right of every individual to speak, write or publish." It is relevant to mention here that the distinction
made between the Press and the broadcasting media vis-a-vis
the First Amendment has been justified by an American jurist
Bollinger as based on First Amendment values and not on
notions of expediency. He says that in "permitting
different treatment of the two institutions...... (the)
Court has imposed a compromise - a compromise, however, not
based on notions of expediency, but rather on a reasoned and
principled accommodation of competing First Amendment values". [75 Michigan law Review 1, 26-36 (1976) quoted in
"Constitutional Law" by Stone, Seidman and others (Second
Edition) at 1427-28].
190. It is true that with the advances in technology, the
argument of few or limited number of frequencies has become
weak. Now, it is claimed that an unlimited number of
frequencies are available. We shall assume that it is so.
Yet the fact remains that airwaves are public property that
they are to be utilised to the greatest public good; that
they cannot be allowed to be monopolised or hijacked by a
few privileged persons or groups; that granting license to
everyone who asks for it would reduce the right to nothing
and that such a licensing system would end up in creation of
oligopolies as the experience in Italy has shown - where the
limited experiment of permitting private broadcasting at the
local level though not at the national level, has resulted
in creation of giant media empires and media magnates, a
development not conducive to free speech right of the
citizens. It would be instructive to note the lament of the
United States Supreme Court regarding the deleterious effect
the emergence of media empires had on the freedom of Press
in that country. In Miami Herald Publishing Company v. Tornillo (1974 - 418 U.S. 24 1), the Court said:
"Access advocates submit that .... the press
of today is in reality very different from
that known in the early years of our national
existence.....
The elimination of competing newspapers in
most of our large cities, and the
concentration of control of media that results
from the only newspaper’s being owned by the
same interests which own a television station
and a radio station, are important components
of this trend towards concentration of control
of outlets to inform the public.
The result of these vast changes has been to
place in a few hands the power to inform the
American people and shape public opinion.
Much of the editorial opinion and commentary
that is printed is that of syndicated
columnists distributed nationwide and, as a
result, we are told, on national and world
issues there tends to be a homogeneity of
editorial opinion, commentary, and
interpretive analysis. The abuses of bias and
manipulative reportage are, likewise, said to
be the result of the vast accumulations of
unreviewable power in the modem media empires.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 98 of 109
In effect, it is claimed, the public has lost
any ability to respond or to contribute in a
meaningful way to the debate on issues....
The obvious solution, which was available to
dissidents at an earlier time when entry into
publishing was relatively inexpensive, today
would be to have additional newspapers. But
the same economic factors which have caused
the disappearance of vast numbers of
metropoli-
218
tan newspapers, have made entry into the
market place of ideas served by the print
media almost impossible. It is urged that the
claim of newspapers to be "surrogates for the
public" carries with it a concomitant
fiduciary obligation to account for that
stewardship. From this premise it is reasoned
that the only effective way to insure fairness
and accuracy and to provide for some
accountability is for government to take
affirmative action. The First Amendment
interest of the public in being informed is
said to be in peril because the "marketplace
of ideas " is today a monopoly controlled by
the owners of the market........
(Emphasis added)
Of course, there is another side to this picture: the media
gaints in United States are so powerful that Government
cannot always manipulate them - as was proved in the
Pentagon Papers’ case [New York Times v.United States -
(1971) 403 U.S.713)] and in the case of President’s Claim of
Privilege [United States v. Nixon - (1974) 418 U.S.683)].
These considerations - all of them emphasised by Constitutional Courts of United States and major west-European
countries - furnish valid grounds against reading into
Article 19(1)(a) a right to establish private broadcasting
stations, whether permanent or temporary, stationary or
mobile. Same holding holds good for earth stations and
other telecasting equipment which the petitioners want to
bring in through their chosen agencies. As explained
hereinbefore, there is no distinction in principle between a
regular TV station and an earth station or other telecasting
facility. More about this aspect later.
191. Having noticed the judicial wisdom of the
Constitutional Courts in leading democracies, we may turn to
the issues arising herein.
The Nature of grounds specified in Article
19(2) of the Constitution
192. A look at the grounds in clause (2) of Article 19,
in the interests of which a law can be made placing
reasonable restrictions upon the freedom of speech and
expression goes to show that they are all conceived in the
national interest as well as in the interest of society.
The first set of grounds, viz., the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States and public order are grounds
referable to national interest whereas the second set of
grounds, viz., decency, morality, contempt of court,
defamation and incitement to offence are conceived in the
interest of society. The inter-connection and the interdependence of freedom of speech and the stability of society
is undeniable. They indeed contribute to and promote each
other. Freedom of speech and expression in a democracy
ensures that the change desired by the people, whether inhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 99 of 109
political, economic or social sphere, is brought about
peacefully and through law. That change desired by the
people can be brought about in an orderly, legal and
peaceful manner is by itself an assurance of stability and
an insurance against violent upheavals which are the hallmark of societies ruled by dictatorships, which do not
permit this freedom. The stability of, say, the British
nation and the periodic convulsions witnessed in the
dictatorships around the world is ample proof of this
truism. The converse is equally true. The more stable the
society is, the more scope, it provides for exercise of
right of free speech and expression. A society which feels
secure can and does permit a greater latitude than a society
whose stability is in
219
constant peril. As observed by Lord Sumner in Bowman v.
Secular Society Ltd. (1917 A.C.406):
"The words, as well as the acts, which tend to endanger
society differ from time to time in proportion as society is
stable or insecure in fact, or is believed by its reasonable
members to be open to assault. In the present day meetings
or processions are held lawful which a hundred and fifty’
years ago would have been deemed seditious, and this is not
because the law is weaker or has changed, but because, the
times having changed, society is stronger than before.....
\. After all, the question whether a given opinion is a
danger to society is a question of the times and is a
question of fact. I desire to say nothing that would limit
the right of society to protect itself by process of law
from the dangers of the movement, whatever that right may
be, but only to say that, experience having proved dangers
once thought real to be now negligible, and dangers once
very possibly imminent to have now passed away, there is
nothing in the general rules as to blasphemy and
irreligion .... which prevents us from varying their
application to the particular circumstances of our time in
accordance with that experience.
193. It is for this reason that our founding fathers while
guaranteeing the freedom of speech and expression provided
simultaneously that the said right cannot be so exercised as
to endanger the interest of the nation or the interest of
the society, the case may be. This is not merely in the
interest of nation and society but equally in the interest
of the freedom of speech and expression itself, the reason
being the mutual relevance and inter-dependence aforesaid.
194. Reference may also be made in this connection to
the decision of the United States Supreme Court in F.C.C. v.
National Citizens Committee for Broadcasting [(1978) 436
U.S.775], referred to hereinbefore, where it has been held
that "to deny a station licence because the public interest
requires it is riot a denial of free speech". It is
significant that this was so said with reference to First
Amendment to the United States Constitution which guarantees
the freedom of speech and expression in absolute terms. The
mason is obvious. The right cannot rise above the national
interest and the interest of society which is but another
name for the interest of general public. It is true that
Article 19(2) does not use the words "national interest",
"interest of society" or "public interest" but as pointed
hereinabove, the several grounds mentioned in clause (2) are
ultimately referable to the interests of the nation and of
the society. As observed by White,j., speaking for the
United States Supreme Court, in Red Lion:
"It is the purpose of the First Amendment to
preserve an uninhibited marketplace of ideashttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 100 of 109
in which truth will ultimately prevail, rather
than to countenance monopolization of that
market, whether it be by the Government itself
or a private licensee. Associated Press v
United States, 326 US 1, 20, 89 L Ed 2013,
2030, 65 S Ct 1416 (1945); New York Times Co.
v Sullivan, 376 US 254, 270, 11 L Ed 2d 686,
700, 84 S Ct 710, 95 ALR2d 1412 (1964); Abrams
v United States, 250 US 616, 630, 63 L Ed
1173, 1180, 40 S Ct 17 (1919) (Holmes,J., dis-
senting). "[S]peech concerning public affairs
is more Om self-expression; it is the essence
of self-government." Garrison v Louisiana, 379
US 64, 74-75, 13 L Ed 2d 125, 133, 85 S Ct 209
(1964). See Brennan, The Supreme Court and
the
220
Meiklejohn interpretation of the First
Amendment, 79 Hary L Rev 1 (1965). It is the
right of the public to receive suitable access
to social, political, esthetic, moral, and
other ideas and experiences which is crucial
here."
(Emphasis added)
195. We may have to bear this in mind while delineating
the parameters of this freedom. It would also be
appropriate to keep in mind the observations in Columbia
Broadcasting System v. Democratic National Committee (36
L.Ed.2d.772), Burger,C.J. quoted the words of Prof, Chafee
to the following effect:
"Once we -get away from the bare words of the
First Amendment, we must construe it as part
of a Constitution which creates a government
for the purpose of performing several very
important tasks. The First Amendment should be
interpreted so as not to cripple the regular
work of the government.
196. We must also bear in mind that the obligation of
the State to ensure this right to all the citizens of the
country (emphasised hereinbefore) creates an obligation upon
it to ensure that the broadcasting media is not monopolised,
dominated or hijacked by privileged, rich and powerful
interests. Such monopolisation or domination cannot but be
prejudicial to the freedom of speech and expression of the
citizens in general - an aspect repeatedly stressed by the
Supreme Court of United States and the Constitutional Courts
of Germany and Italy.
197. The importance and significance of television in the
modern world needs no emphasis. Most people obtain the bulk
of their information on matters of contemporary interest
from the broadcasting medium.
The television is unique in the way in which it intrudes
into our homes. The combination of picture and voice makes
it an irresistibly attractive medium of presentation. Call
it idiot box or by any other pejorative name, it has a
tremendous appeal and influence over millions of people.
Many of them are glued to it for hours on end each day.
Television is shaping the food habits, cultural values,
social mores and what not of the society in a manner no
other medium has done so far. Younger generation is
particularly addicted to it. It is a powerful instrument,
which can be used for greater good as also for doing immense
harm to the society. It depends upon how it is used. With
the advance of technology, the number of channels available
has grown enormously. National borders have becomehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 101 of 109
meaningless. The reach of some of the major networks is
international they are not confined to one country or one
region. It is no longer possible for any government to
control or manipulate the news, views and information available to its people. In a manner of speaking, the
technological revolution is forcing inter-nationalism upon
the world. No nation can remain a fortress or an island in
itself any longer. Without a doubt, this technological
revolution is presenting new issues, complex in nature - in
the words of Burger,C.J., "complex problems with many hard
questions and few easy answers". Broadcasting media by its
very nature is different from Press. Airwaves are public
property. The fact that a large number of
frequencies/channels are available does not make them
anytheless public property. It is the obligation of the
State under our constitutional system to ensure that they
are used for public good.
198. Now, what does this public good mean and signify in the
context of the
221
broadcasting medium? In a democracy, people govern
themselves and they cannot govern themselves properly unless
they are aware - aware of social, political, economic and
other issues confronting them. To enable them to make a
proper judgment on those issues, they must have the benefit
of a range of opinions on those issues. Right to receive
and impart information is implicit in free speech. This
plurality of opinions, views and ideas is indispensable for
enabling them to make an informed judgment on those issues
to know what is their true interest, to make them
responsible citizens, to safeguard their rights as also the
interests of society and State. All the constitutional
courts of leading democracies, reference to which has been
made hereinbefore, have recognised and reiterated this
aspect. This is also the view of the European Court of
Human Rights. In Castells v. Spain (14 EHRR 445) - quoted
in 1994 Public Law at 524 - the court held that free
political debate is "at the very core of the concept of a
democratic society".
199. From the standpoint of Article 19(1)(a), what is
paramount is the right of the listeners and viewers and not
the right of the broadcaster - whether the broadcaster is
the State, public corporation or a private individual or
body. A monopoly over broadcasting, whether by government
or by anybody else, Is inconsistent with the free speech
right of the citizens. State control really means
governmental control, which in turn means, control of the
political party or parties in power for the time being.
Such control is bound to colour the views, information and
opinions conveyed by the media. The free speech right of
the citizens is better served in keeping the broadcasting
media under the control of public. Control by public means
control by an independent public corporation or
corporations, as the case may be, formed under a statute.
As held by the Constitutional Court of Italy, broadcasting
provides an essential service in a democratic society and
could legitimately be reserved for a public institution,
provided certain conditions are met. The corporation(s)
must be constituted and composed in such a manner as to
ensure its independence from government and its impartiality
on public issues. When presenting or discussing a public
issue, it must be ensured that all aspects of it are
presented in a balanced manner, without appearing to espouse
any one point of view. This will also enhance the
credibility of the media to a very large extent; ahttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 102 of 109
controlled media cannot command that level of credibility.
For the purpose of ensuring the free speech rights of the
citizens guaranteed by Article 19(1)(a), it is not necessary
to have private broadcasting stations, as held by the
Constitutional Courts of France and Italy. Allowing private
broadcasting would be to open the door for powerful
economic, commercial and political interests, which may not
prove beneficial to free speech right of the citizens - and
certainly so, if strict programme controls and other
controls are not prescribed. The analogy with press is
wholly inapt. Above all, airwaves constitute public
property. While, the freedom guaranteed by Article 19(1)(a)
does include the right to receive and impart information, no
one can claim the fundamental right to do so by using or
employing public property. Only where the statute permits
him to use the public property, then only - and subject to
such conditions and restrictions as the law may impose - he
can use the public property, viz., airwaves. In other
words, Article 19(1)(a) does not
222
enable a citizen to impart his information, views and
opinions by using the airwaves. He can do so without using
the airwaves. It need not be emphasised that while
broadcasting cannot be effected without using airwaves,
receiving the broadcast does not involve any such use.
Airwaves, being public property must be utilised to advance
public good. Public good lies in ensuring plurality of
opinions, views and ideas and that would scarcely be served
by private broadcasters, who would be and who are bound to
be actuated by profit motive. There is a far greater
likelihood of these private broadcasters indulging in misinformation, disinformation and manipulation of news and
views than the government-controlled media, which is at
least subject to public and parliamentary scrutiny. The
experience in Italy, where the Constitutional Court allowed
private broadcasting at the local level while denying it at
the national level should serve as a lesson; this limited
opening has given rise to giant media oligopolies as
mentioned supra. Even with the best of programme controls
it may prove counter-productive at the present juncture of
our development; the implementation machinery in our country
leaves much to be desired which is shown by the
ineffectiveness of the several enactments made with the best
of the intentions and with most laudable provisions; this is
a reality which cannot be ignored. It is true that even if
private broadcasting is not allowed from Indian soil, such
stations may spring up on the periphery of or outside our
territory, catering exclusively to the Indian public.
Indeed, some like stations have already come into existence.
The space, it is said, is saturated with communication
satellites and that they are providing and are able to pro
vide any number of channels and frequencies. More
technological developments must be in the offing. But that
cannot be a ground for enlarging the scope of Article 19(1
(a). It may be a factor in favour of allowing private
broadcasting - or it may not be. It may also be that the
Parliament decides to increase the number of channels under
the Doordarshan, diversifying them into various fields,
commercial, educational, sports and so on. Or the Parliament may decide to permit private broadcasting, but if it
does so permit, it should not only keep in mind the
experience of the countries where such a course has been
permitted but also the conditions in this country and the
compulsions of technological developments and the realities
of situation resulting from technological developments. Wehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 103 of 109
have no doubt in our mind that it will so bear in mind the
above factors and all other relevant circumstances. We make
it clear, we are not concerned with matters of policy but
with the content of Article 19(1)(a) and we say that while
public broadcasting is implicit in it, private broadcasting
is not. Matters of policy are for the Parliament to
consider and not for courts. On account of historical factors, radio and television have remained in the hands of the
State exclusively. Both the networks have been built up
over the years ’With public funds. They represent the
wealth and property of the nation. It may even be said that
they represent the material resources of the community
within the meaning of Article 39(b). They may also be said
to be ’facilities’ within the meaning of Article 38, They
must be employed consistent with the above articles and
consistent with the constitutional policy as adumbrated in
the preamble to the Constitution and Parts III and IV. We
must reiterate that the Press whose freedom is implicit in
Article 19(1)(a) stands
223
on a different footing. The petitioners - or the potential
applicants for private broadcasting licenses - cannot invoke
the analogy of the press. To repeat, airwaves are public
property and better remain in public hands in the interest
of the very freedom of speech and expression of the citizens
of this country.
200. It would be appropriate at this stage to deal with the
reasoning of the European Court of Human Rights in the case
of Informationsverein Lentia. The first thing to be noticed
in this behalf is the language of Article 10(1) of the
European convention, set out hereinbefore. Clause (1) of
Article 10 not only says that everyone has the right to
freedom of expression but also says that the said right
shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. The clause then adds
that Article 10 shall not, however, prevent the State from
requiring the licensing of broadcasting, television or
cinema enterprises. Clause (2) of course is almost in para
materia with clause (2) of Article 19 of our Constitution.
What is, however, significant is that Article 10(1)
expressly conferred the right "to receive and impart
information and ideas without interference by public
authority". The only power given to public authority, which
in the context means the State/Government, is to provide the
requirement of license and nothing more. It is this feature
of clause (1) which has evidently influenced the decision of
the European court. The decision cannot, therefore, be read
as laying down that the right of free expression by itself
implies and includes the right to establish private
broadcasting stations. It is necessary to emphasise another
aspect. While I agree with the statement in Para 38 to the
effect that freedom of expression is fundamental to a
democratic society and that the said right "cannot be
successfully accomplished unless it is grounded in the
principle of pluralism, of which the State is the ultimate
guarantor", I find it difficult to agree that such pluralism
cannot be ensured by a public/statutory corporation of the
nature already in existence in Austria and that it is
necessary to provide for private broadcasting to ensure
pluralism, as held in Para 39. The fact that as a result of
technological advances, the argument of limited number of
frequencies is no longer available, cannot be a ground for
reading the right to private broadcasting into freedom of
expression. The decision as such is coloured by thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 104 of 109
particular language of clause (1) of Article 10, as stated
above. I must also say that the last observation in Para 39
viz., that there can be other less restrictive solutions is
also not a ground which we can give effect to under the
legal system governing us. The question in such cases
always is whether the particular restriction placed is
reasonable and valid and not whether other less restrictive
provisions are possible. I may also mention that the
arguments which weighed with other constitutional courts,
viz., that airwaves represent public property and that they
cannot be allowed to be dominated or monopolised by powerful
commercial, economic and political interests does not appear
to have been argued or considered by the European Court. As
has been emphasised by other constitutional courts, the very
free speech interest of the citizens requires that the
broadcasting media is not dominated or controlled by such
powerful interests.
201. There is yet another aspect of the
224
petitioners’ claim which requires to be explained.
According to their own case, they have sold the telecasting
rights with respect to their matches to a foreign agency
with the understanding that such foreign agency shall bring
in its own equipment and personnel and telecast the matches
from the Indian territory. Once they have sold their
rights, the foreign agency is not their agent but an
independent party. It is a principal by itself The foreign
agency cannot claim or enforce the right guaranteed by
Article 19(1)(a). Petitioners cannot also claim because
they have already sold the rights. In other words, the
right to telecast is no longer with them but with the
foreign firm which has purchased the telecasting rights.
For this reason too, the petitioners’ claim must be held to
be unacceptable.
202. Having held that Article 19(1)(a) does not encompass
the right to establish, maintain or run broadcasting
stations or broadcasting facilities, we feel it necessary to
clarify the true purport of the said freedom in the context
of broadcasting media. This is necessary to ensure that I
am not misunderstood or misinterpreted. Indeed, what I
propose to say hereafter flows logically from what I have
said heretofore.
203. It has been held by this Court in Life Insurance
Corporation v. Manubhai Shah
that the freedom of speech and
expression guaranteed to the citizens of this country
"Includes the right to propagate one’s views through print
media or through any other communication channel, e.g., the
radio and the television. Every citizen of this free
country, therefore, has the right to air his or her views
through the printing course to permissible restrictions
imposed under Article 19(2) of the Constitution". It has
also been held in the said decision that "the print media,
the radio and the tiny screen play the role of public educators, so vital to the growth of a healthy democracy.
Freedom to air one’s views is the lifeline of any democratic
institution and any attempt to stifle, suffocate or gag this
right would sound a death-knell to democracy and would help
usher in autocracy or dictatorship..... It follows that a
citizen for propagation of his or her ideas has a right to
publish for circulation his views in periodicals, magazines
and journals or through the electronic media since it is
well known that these communication channels are great
purveyors of news and views and make considerable impact on
the minds of the readers and viewers and are known to mould
public opinion on vital issues of national importance." Tohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 105 of 109
the same effect is the holding in Odyssey Communications
referred to supra. Once this is so, it follows that no
monopoly of this media can be conceived for -the simple
reason that Article 19(2) does not permit State monopoly
unlike clause (6) of Article 19 vis-a-vis the right
guaranteed by Article 19(1)(g).
204. All the Constitutional Courts whose opinions have been
referred to hereinbefore have taken the uniform view that in
the interest of ensuring plurality of opinions, views, ideas
and ideologies, the broadcasting media cannot be allowed to
be under the monopoly of any one - be it the monopoly of
Government or or an individual, body or Organisation.
Government control in effect means the control of the political party or parties in power for the time being. Such
control is bound to colour and/or the electronic media
subject of and in some cases, may even distort the
225
news, views and opinions expressed through the media. It is
not conducive to free expression of contending viewpoints
and opinions which is essential for the growth of a healthy
democracy. I have said enough hereinbefore in support of
the above propositions and we do not think it necessary to
repeat the same over again here. I have also mentioned
hereinbefore that for ensuring plurality of views, opinions
and also to ensure a fair and balanced presentation of news
and public issues, the broadcast media should be placed
under the control of public, i.e., in the hands of statutory
corporation or corporations, as the case may be. This is
the implicit command of Article 19(1)(a). I have also
stressed the importance of constituting and composing these
corporations in such a manner that they ensure impartiality
in political, economic and social and other matters touching
the public and to ensure plurality of views, opinions and
ideas. This again is the implicit command of Article
19(1)(a). This medium should promote the public interest by
providing information, knowledge and entertainment of good
quality in a balanced way. Radio and Television should
serve the role of public educators as well. Indeed, more
than one corporation for each media can be provided with a
view to provide competition among them (as has been done in
France) or for convenience, as the case may be.
205. Now, coming to the Indian Telegraph Act, 1885, a look
at its scheme and provisions would disclose that it was
meant for a different purpose altogether. When it was
enacted, there was neither Radio***** nor, of course,
television, though it may be that radio or television fall
within the definition of "telegraph" in Section 3(1).
Except Section 4 and the definition of the expression
"telegraph", no other provision of the Act appears to be
relevant to broadcasting media. Since the validity of
Section 4(1) has not been specifically challenged before us,
we decline to express any opinion thereon. The situation is
undoubtedly unsatisfactory. This is the result of the
legislation in this country not keeping pace with the
technological developments. While all the democracies in
the world have enacted laws specifically governing the
broadcasting media, this country has lagged behind, rooted
in the Telegraph Act of 1885 which is wholly inadequate and
unsuited to an important medium like radio and television,
i.e., broadcasting media. It is absolutely essential, in
the interests of public, in the interests of the freedom of
speech and expression guaranteed by Article 19(1)(a) and
with a view to avoid confusion, uncertainty and consequent
litigation that Parliament steps in soon to fill the void by
enacting a law or laws, as the case may be, governing thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 106 of 109
broadcasting media, i.e., both radio and television media.
The question whether to permit private broadcasting or not
is a matter of policy for the Parliament to decide. If it
decides to permit it, it is for the Parliament to decide,
subject to what conditions and restrictions should it be
permitted. (This aspect has been dealt with supra.) The fact
remains that private broadcasting, even if allowed, should
not be left to market forces, in the interest of ensuring
that a wide variety of voices enjoy access to it.
SUMMARY
206. In this summary too, the expres-
***** It was only in 1895 that G.Marconi suc-
ceeded in transmitting wireless signals be-
tween sending and receiving points without the
use of connecting wires over a distance of tw
o
kilometers.
226
sion "broadcasting media" means the electronic media now
represented and operated by AIR and Doordarshan and not any
other services.
I (a).Game of cricket, like any other sports event,provides
entertainment. Providing entertainment is implied in
freedom of speech and expression guaranteed by Article
19(1)(a) of the Constitution subject to this rider that
where speech and conduct are joined in a single course of
action, the free speech values must be balanced against
competing societal interests, The petitioners (CAB and BCCI)
therefore have a right to organise cricket matches in India,
whether with or without the participation of foreign teams.
But what they are now seeking is a license to telecast their
matches through an agency of their choice - a foreign agency
in both the cases - and through telecasting equipment
brought in by such foreign agency from outside the country.
In the case of Hero Cup Matches organised by CAB, they
wanted uplinking facility to INTELSAT through the government
agency VSNL also. In the case of later international
matches organised by BCCI they did not ask for this facility
for the reason that their foreign agent has arranged direct
uplinking with the Russian satellite Gorizon. In both
cases, they wanted the permission to import the telecasting
equipment along with the personnel to operate it by moving
it to places all over the country wherever the matches were
to be played. They claimed this license, or permission, as
it may be called, as a matter of right said to be flowing
from Article 19(1)(a) of the Constitution. They say that
the authorities are bound to grant such license/ permission,
without any conditions, all that they are entitled to do, it
is submitted, is to collect technical fees wherever their
services are availed, like the services of VSNL in the case
of Hero Cup Matches. This plea is in principle no different
from the right to establish and operate private telecasting
stations. In principle, there is no difference between a
permanent TV station and a temporary one; similarly there is
no distinction in principle between a stationary TV facility
and a mobile one; so also is there no distinction between a
regular TV facility and a TV facility for a given event or
series of events. If the right claimed by the petitioners
(CAB and BCCI) is held to be constitutionally sanctioned
one, then each and every citizen of this country must also
be entitled to claim similar right in respect of his event
or events, as the case may be. I am of the opinion that no
such right flows from Article 19(1)(a).
(b)Airwaves constitute public property and must be utilised
for advancing public good. No individual has a right tohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 107 of 109
utilise them at his choice and pleasure and for purposes of
his choice including profit. The right of free speech
guaranteed by Article 19(1)(a) does not include the right to
use airwaves, which are public property. The airwaves can
be used by a citizen for the purpose of broadcasting only
when allowed to do so by a statute and in accordance with
such statute. Airwaves being public property, it is the
duty of the State to see that airwaves are so utilised as to
advance the free speech right of the citizens which is
served by ensuring plurality and diversity of views,
opinions and ideas. This is imperative in every democracy
where freedom of speech is assured. The free speech right
guaranteed to every citizen of this country does not
encompass the right to use these airwaves at his choosing.
Conceding such a right would be
227
detrimental to the free speech rights of the body of
citizens inasmuch as only the privileged few - powerful
economic, commercial and political interests - would come to
dominate the media. By manipulating the news, views and
information, by indulging in misinformation and
disinformation, to suit their commercial or other interests,
they would be harming and not serving - the principle of
plurality and diversity of views, news, ideas and opinions.
This has been the experience of Italy where a limited right,
i.e., at the local level but not at the national level was
recognised. It is also not possible to imply or infer a
right from the guarantee of free speech which only a few can
enjoy.
(c)Broadcasting media is inherently different from Press or
other means of communication/information. The analogy of
press is misleading and inappropriate. This is also the
view expressed by several Constitutional Courts including
that of the United States of America.
(d) I must clarify what I say; it is that the right claimed
by the petitioners (CAB and BCCI) - which in effect is no
different in principle from a right to establish and operate
a private TV station - does not flow from Article 19(1)(a);
that such a right is not Implicit in it. The question
whether such right should be given to the citizens of this
country is a matter of policy for the Parliament. Having
regard to the revolution in information technology and the
developments all around, Parliament may, or may not, decide
to confer such right. If it wishes to confer such a right,
it can only be by way of an Act made by Parliament. The Act
made should be consistent with the right of free speech of
the citizens and must have to contain strict programme and
other controls as has been provided for example, in the
Broadcasting Act, 1991 in the United Kingdom. This is the
implicit command of Article 19(1)(a) and is essential to
preserve and promote plurality and diversity of views, news,
opinions and ideas.
(e) There is an inseparable inter-connection between
freedom of speech and the stability of the society, i.e.,
stability of a nation-State. They contribute to each other.
Ours is a nascent republic. We are yet to achieve the goal
of a stable society. This country cannot also afford to
read into Article 19(1)(a) an unrestricted right to
licensing (right of broadcasting) as claimed by the
petitioners herein.
(f) In the case before us, both the petitioners have sold
their right to telecast the matches to a foreign agency.
They have parted with the right. The right to telecast the
matches, including the right to import, install and operate
the requisite equipment is thus really sought by the foreignhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 108 of 109
agencies and not by the petitioners. Hence, the question of
violation of their right under Article 19(1)(a) resulting
from refusal of license/permission to such foreign agencies
does not arise.
2. The Government monopoly of broadcasting media in this
country is the result of historical and other factors. This
is true of every other country, to start with. That India
was not a free country till 1947 and its citizens did not
have constitutionally guaranteed fundamental freedoms till
1950 coupled with the fact that our Constitution is Just
about forty five years into operation explains the
Government monopoly. As pointed out in the body of the
judgment, broadcasting media was a mo-
228
nopoly of the Government, to start with, in every country
except the United States where a conscious decision was
taken at the very beginning not to have State monopoly over
the medium. Until recently, the broadcasting media has been
in the hands of public/statutory corporations in most of the
West European countries. Private broadcasting is
comparatively a recent phenomenon. The experience in Italy
of allowing private broadcasting at local level (while
prohibiting it at national level) has left much to be
desired. It has given rise to powerful media empires which
development is certainly not conducive to free speech right
of the citizens.
3 (a). It has been held by this Court - and rightly - that
broadcasting media is affected by the free speech right of
the citizens guaranteed by Article 19(1)(a). This is also
the view expressed by all the Constitutional Courts whose
opinions have been referred to in the body of the judgment.
Once this is so, monopoly of this medium (broadcasting
media), whether by Government or by an individual, body or
Organisation is unacceptable. Clause (2) of Article 19 does
not permit a monopoly in the matter of freedom of speech and
expression as is permitted by clause (6) of Article 19
vis-a-vis the right guaranteed by Article 19(1)(g).
(b) The right of free speech and expression includes the
right to receive and impart information. For ensuring the
free speech right of the citizens of this country, it is
necessary that the citizens have the benefit of plurality of
views and a range of opinions on all public issues. A
successful democracy posits an ’aware’ citizenry. Diversity
of opinions, views, ideas and ideologies is essential to
enable the citizens to arrive at informed judgment on all
issues touching them. This cannot be provided by a medium
controlled by a monopoly - whether the monopoly is of the
State or any other individual, group or Organisation. As a
matter of fact, private broadcasting stations may perhaps be
more prejudicial to free speech right of the citizens than
the government controlled media, as explained in the body of
the judgment. The broadcasting media should be under the
control of the public as distinct from Government. This is
the command implicit in Article 19(1)(a). It should be
operated by a public statutory corporation or corporations,
as the case may be, whose constitution and composition must
be such as to ensure its/their impartiality in political,
economic and social matters and on all other public issues.
It/they must be required by law to present news, views and
opinions in a balanced way ensuring pluralism and diversity
of opinions and views. It/they must provide equal access to
all the citizens and groups to avail of the medium.
4. The Indian Telegraph Act, 1885 is totally inadequate to
govern an important medium like the radio and television,
i.e., broadcasting media. The Act was intended for anhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 109 of 109
altogether different purpose when it was enacted. This is
the result of the law in this country not keeping pace with
the technological advances in the field of information and
communications. While all the leading democratic countries
have enacted laws specifically governing the broadcasting
media, the law in this country has stood still, rooted in
the Telegraph Act of 1885. Except Section 4(1) and the
definition of telegraph, no other provision of the Act is
shown to have any relevance to broadcasting media. It is,
therefore,
229
imperative that the parliament makes a law placing the
broadcasting media in the hands of a public/statutory
corporate or the corporations, as the case.may be. This is
necessary to safeguard the interests of public and the
interests of law as also to avoid uncertainty, confusion and
consequent litigation.
5. The CAB did not ever apply for a license under the
first proviso to Section 4 of the Telegraph Act nor did its
agents ever make such an application. The permissions,
clearances or exemption obtained by it from the several
departments (mentioned in judgment) are no substitute for a
license under Section 4(1) proviso. In the absence of such
a license, the CAB had no right in law to have its matches
telecast by an agency of its choice. The legality or
validity of the orders passed by Sri N.Vithal, Secretary to
the Government of India, Telecommunications Department need
not be gone into since it has become, academic. In the
facts and circumstances of the case, the charge of malafides
or of arbitrary and authoritarian conduct attributed to
Doordarshan and Ministry of Information and Broadcasting is
not acceptable. No opinion need be expressed on the
allegations filed by BCCI in these matters. Its
intervention was confined to legal questions only.
6. Now the question arises, what is the position till the
Central Government or the Parliament takes steps as contemplated in Para (4) of the summary, i.e., if any sporting
event or other event is to be telecast from the Indian soil?
The obvious answer flowing from the judgment [and Paras (1)
and (4) of this summary is that the organiser of such event
has to approach the, nodal Ministry as specified in the decision of the Meeting of the Committee of Secretaries held
on November 12, 1993. I have no reason to doubt that such a
request would be considered by the nodal Ministry and the
AIR and Doordarshan on its merits, keeping in view the
public interest. In case of any difference of opinion or
dispute regarding the monetary terms on which such telecast
is to be made, matter can always be referred to an
Arbitrator or a panel of Arbitrators. In case, the nodal
Ministry or the AIR or Doordarshan find such
broadcast/telecast not feasible, then they may consider the
grant of permission to the organisers to engage an agency of
their own for the purpose. Of course, it would be equally
open to the nodal Ministry (Government of India) to permit
such foreign agency in addition to AIR/ Doordarshan, if they
are of the opinion that such a course is called for in the
circumstances.
207. For the above reasons, the appeals, writ petition
and applications are disposed of in the above terms. No
costs.
232
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 109
PETITIONER:
THE SECRETARY, MINISTRY OF INFORMATION & BROADCASTING,
Vs.
RESPONDENT:
CRICKET ASSOCIATION OF BENGAL & ANR.
DATE OF JUDGMENT09/02/1995
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
MOHAN, S. (J)
JEEVAN REDDY, B.P. (J)
CITATION:
1995 AIR 1236 1995 SCC (2) 161
JT 1995 (2) 110 1995 SCALE (1)539
ACT:
HEADNOTE:
JUDGMENT:
1. Leave granted.
2. It will be convenient to answer the questions of law
that arise in the present case, before we advert to the
factual controversy between the parties. The questions of
law are:
[1] Has an organiser or producer of any event a right to get
the event telecast through an agency of his choice whether
national or foreign?
[2] Has such organiser a choice of the agency of
telecasting, particularly when the exercise of his right,
does not make demand on any of the frequencies owned,
commanded or controlled by the Government or the Government
agencies like the Videsh Sanchar Nigam Limited [VSNL] or
Doordarshan [DD]?
[3] Can such an organiser be prevented from creating the
terrestrial signal and denied the facility of merely
uplinking the terrestrial signal to the satellite owned by
another agency whether foreign or national?
[4] What, if any, are the conditions which can be imposed by
the Government department which in the present case is the
Ministry of Information and Broadcasting [MIB] for [a]
creating terrestrial signal of the event and [b] granting
facilities of uplinking to a satellite not owned or controlled by the Government or its agencies?
3. On answers to these questions depend the answers to the
incidental questions such as [i] whether the Government or
the Government agencies like DD in the present case, have a
monopoly of creating terrestrial signals and of telecasting
them or refusing to telecast them, [ii] whether the
Government or Government agencies like DD can claim to be
the host broadcaster for all events whether produced or
organised by it or by anybody else in the country and can
insist upon the organiser or the agency for telecasting engaged by him, to take the signal only from the Government or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 109
Government agency and telecast it only with its permission
or
4. To appreciate the thrust of the above questions and the
answers to them, it is necessary first to have a proper
understanding of what ’telecasting’ means and what its legal
dimensions and consequences are. Telecasting is a system of
communication either audio or visual or both. We are
concerned in the present case with audio-visual
telecommunication. The first stage in telecasting is to
generate the audio-visual signals of the events or of the
information which is sought to be communicated. When the
event to be telecast takes place on the earth, necessarily
the signal is generated on the earth by the
123
requisite electronic mechanism such as the audio-visual
recorder. This stage may be described as the recording
stage. The events may be spontaneous, accidental, natural
or organised. The spontaneous, accidental and natural
events are by their nature uncontrollable. But the
organised events can be controlled by the law of the land.
In our country, since the Organisation of an event is an
aspect of the fundamental right to freedom of speech and
expression protected by Article 19 [1] (a), the law can be
made to control the Organisation of such events only for the
purposes of imposing reasonable restrictions in the interest
of the sovereignty and integrity of the country, 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
as laid down under Article 19 [2] of the Constitution. Although, therefore, it is not possible to make law for
prohibiting the recording of spontaneous, accidental or
natural events, it is possible for the reasons mentioned in
Article 19 [2], to restrict their telecasting. As regards
the organised events, a law can be made for restricting or
prohibiting the Organisation of the event itself, and also
for telecasting it, on the same grounds as are mentioned in
Article 19 [2]. There, cannot, however, be restrictions on
producing and recording the event on grounds not permitted
by Article 19 [2]. It, therefore, follows that the
Organisation or production of an event and its recording
cannot be prevented except by law permitted by Article 19
[2]. For the same reasons, the publication or communication
of the recorded event through the mode of cassettes cannot
be restricted or prevented except under such law. All those
who have got the apparatus of video cassette recorder [VCR]
and the television screen can, therefore, view and listen to
such recorded event [hereinafter referred to, for the sake
of convenience, as ’viewers’]. In this process, there is no
demand on any frequency or channel since there is no livetelecast of the event. The only additional restriction on
telecasting or live-telecasting of such event will be the
lack of availability of the frequency or channel.
5. Since in the present case, what is involved is the
right to live-telecast the event, viz., the cricket matches
organised by the Cricket Association of Bengal, it is
necessary to understand the various issues involved in live
telecasting. It may be made clear at the outset, that there
may as well be a file telecast [i.e., telecasting of the
events which are already recorded by the cassette]. The
issues involved in file telecasting will also be more or
less the same and therefore, that subject is not dealt with
separately. Telecasting live or file necessarily involves
the use of a frequency or a channel.
6. The telecasting is of three types, [a] terrestrial, [b]http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 109
cable and [c] satellite. In the first case, the signal is
generated by the camera stationed at the spot of the event,-
and the signal is then sent to the earthly telecasting
station such as the T.V. Centre which in turn relays it
through its own frequencies to all the viewers who have
T.V.screens/sets. In the second case, viz., cable
telecasting, the cable operator receives the signals from
the satellite by means of the parabolic dish antenna and
relays them to all those T.V. screens which are linked to
his cable. He also relays the recorded file programmes or
cassettes through the cable to the cable-linked viewers. In
this case, there is no restriction on
124
his receiving the signals from any satellite to which his
antenna is adjusted. There is no demand made by him on any
frequency or channel owned or controlled by the national
government or governmental agencies. The cable operator can
show any event occurring in any part of the country or the
world live through the frequencies if his dish antenna can
receive the same. The only limitation from which the cable
T.V. suffers is that the programmes relayed by it can be
received only by those viewers who are linked to the dish
antenna concerned. The last type, viz., satellite T.V.
operation involves the use of a frequency generated, owned
or controlled by the national Government or the Governmental
agencies, or those generated, owned and controlled by other
agencies. It is necessary to bear in mind the distinction
between the frequencies generated, owned and controlled by
the Government or Governmental agency and those generated
and owned by the other agencies. This is so because
generally, as in the present case, one of the contentions
against the right to access to telecasting is that there are
a limited number of frequencies and hence there is the need
to utilise the limited resources for the benefit of all
sections of the society and to promote all social interests
by giving them priority as determined by some central
authority. It follows, therefore, that where the resources
are unlimited or the right to telecast need not suffer for
want of a frequency, objection on the said ground would be
misplaced. It may be stated here that in the present case,
the contention of the MIB and DD against the right to
telecast claimed by the Cricket Association of Bengal
[CAB]/Board of Control for Cricket in India [BCCI] was
raised only on the ground of the limitation of frequencies,
ignoring the fact that the CAB/BCCI had not made demand on
any of the frequencies generated or owned by the MIB/DD. It
desired to telecast the cricket matches organised by it
through a frequency not owned or controlled by the
Government but owned by some other agency. The only
permission that the CAB/ BCCI sought was to uplink to the
foreign satellite the signals created by its own cameras and
the earth station or the cameras and the earth station of
its agency to a foreign satellite. This permission was
sought by the CAB/BCCI from VSNL which is the Government
agency controlling the frequencies. The permission again
cannot be refused except under law made in pursuance of the
provisions of Article 19 [2] of the Constitution. Hence, as
stated above, one of the important questions to be answered
in the present case is whether the permission to uplink to
the foreign satellite, the signal created by the CAB/BCCI
either by itself or through its agency can be refused except
on the ground stated in the law made under Article 19 [2].
7. This takes us to the content of the fundamental right
to the freedom of speech and expression guaranteed by
Article 19 [1] (a) and the implications of the restrictionshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 109
permitted to be imposed on the said right, by Article 19
[2]. We will first deal with the decisions of this Court
where the dimensions of the right are delineated.
8. In Romesh Thappar v. The State of Madras [1950 SCR 594]
the facts were that the Provincial Government in exercise of
its powers under Section 9 [1-A] of Madras Maintenance of
Public Order Act, 1949, by an order imposed a ban upon the
entry and circulation of the petitioner’s journal ’Cross
Roads’. The said order stated that it was being passed for
the pur-
125
pose of securing the public safety and the maintenance of
public order. The petitioner approached this Court under
Article 32 of the Constitution claiming that the order
contravened the petitioner’s fundamental right to freedom of
speech and expression. He also challenged the validity of
Section 9 [1-A] of the impugned Act. The majority of the
Court held that the freedom of speech and expression
includes freedom of propagation of ideas and that freedom is
ensured by the freedom of circulation. In support of this
view, the Court referred to two decisions of the U.S. Supreme Court viz., [1] Exparte Jackson [96 US 727] and [ii]
Lovell v. City of Griffin [303 US 444] and quoted with
approval the following passage therefrom: "Liberty of
circulation is as essential to that freedom as the liberty
of publication. Indeed, without circulation the publication
would be of little value". Section 9 [1-A] of the impugned
Act authorised the Provincial Government, "for the purpose
of securing the public safety or the maintenance of public
order, to prohibit or regulate the entry into or the
circulation, sale or distribution in the Province of Madras
or any part thereof or any document or class of documents".
The question that the Court had to answer was whether the
impugned Act insofar as it contained the aforesaid provision
was a law relating to a matter which undermined the security
of, or tended to overthrow the State. The Court held that
"public order" is an expression of wide connotation and
signifies that state of tranquility which prevails among the
members of a political society as a result of the internal
regulations enforced by the Government which they have
established. The Act was passed by the Provincial Legislature under Section 100 of the Government of India Act,
1935, read with Entry I of List II of the Seventh Scheduled
to that Act. That Entry, among others, comprised "public
order" which was different from "public safety" on which
subject the Provincial Legislature was not competent to make
a law. The Court distinguished between "public order" and
"public safety" and held that public safety was a part of
the wider concept of public order and if it was intended to
signify any matter distinguished from and outside the
content of the expression "public order", it would not have
been competent for the Madras Legislature to enact the
provision so far as it related to public safety. "Public
safety" ordinarily means security of the public or their
freedom from danger. In that sense, anything which tends to
prevent danger to public health may also be regarded as securing public safety. The meaning of the expression must,
however, vary according to the context. The Court then
rejected the argument that the securing of the public safety
or maintenance of public order would include the security of
the State which was covered by Article 19 [2] and held that
where a law purports to authorise the imposition of
restrictions on a fundamental right in language wide enough
to cover restrictions both within and without the limits of
constitutionally permissible legislative actions affectinghttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 109
such right, it is not possible to uphold it even insofar as
it may be applied within the constitutional limits as it is
not severable. So long as the possibility of its being
applied for purposes not sanctioned by the Constitution
cannot be ruled out, it may be held to be wholly
unconstitutional and void. In other words, clause [2] of
Article 19 having allowed the imposition of restrictions on
the freedom of speech and expression only in cases where
danger to the State is involved, an enactment which is
capable of being
126
applied to cases where no such danger could arise, cannot be
held to be constitutional and valid to any extent.
9. The above view taken by this Court was reiterated in
Brij Bhushan & Anr. v. The State of Delhi [1950 SCR 6051
where Section 7 [1] (c) of the East Punjab Public Safety
Act, 1949 as extended to the Province of Delhi, providing
that the Provincial Government or any authority authorised
by it in this behalf, if satisfied that such action was
necessary for preventing or combating any activity
prejudicial to the public safety or the maintenance of
public order, may pass an order that any matter relating to
a particular subject -or class of subjects shall before
publication be submitted for scrutiny, was held as unconstitutional and void. The majority held that the said
provision was violative of Article 19 [1] [a] since it was
not a law relating to a matter which undermined the security
of, or tended to overthrow the State within the meaning of
the then saving provision contained in Article 19 [2]. The
Court further unanimously held that the imposition of precensorship of a journal was a restriction on the liberty of
the press which was an essential part of the right to
freedom of speech and expression declared by article 19
[1](a).
10. In Hamdard Dawakhana [Wakf] Lal Kuan, Delhi & Anr. v.
Union of India & Ors. [(1960) 2 SCR 671], the Court held
that the object of the Drugs and Magic Remedies
[Objectionable Advertisements] 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. The Court further held that 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 Article 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
provisions of the Act were in the interest of the general
public and placed reasonable restrictions on the trade and
business of the petitioner and were saved by Article 19 [6].
The Court further held that the first part of Section 8 of
the impugned Act which empowered any person authorised by
the State Government to seize and detain any document
article or thing which such person had reason to believe,http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 109
contained any advertisement contravening the provisions of
the Act imposed an unreasonable restriction on the
fundamental rights of the petitioner and was unconstitutional. According to the Court, the said operation of
Section 8 went far beyond the purposes for which the Act was
enacted and failed to provide proper safeguards in regard to
the exercise of the powers of seizure and detention as had
been provided by the legislature in other statutes.
However, if this operation was ex-
127
cised from the section the remaining portion would be
unintelligible and could not be upheld.
11. In Sakal Papers [P] Ltd. & Ors.. v. The Union of India
[(1962)] 3 SCR 842] what fell for consideration was the
Newspaper [Price and age] Act, 1956 which empowered the
Central Government to regulate the prices of newspapers in
relation to their pages and size and also to regulate the
allocation of space for advertising matters and the Central
Government order made under the said Act, viz., the Daily
Newspaper [Price and Page] Order, 1960 which fixed the
maximum number of pages that might be published by the
newspaper according to the price charged and prescribing the
nature of supplements that could be issued. The Court held
that the Act and the Order were void being violative of
Article 19 [1] (a) of the Constitution. They were also not
saved by Article 19 [2]. The Court asserted that the freedom of speech and expression guaranteed by Article 19 [1]
(a) included the freedom of the press. For propagating his
ideas a citizen had the right to publish them, to
disseminate them and to circulate them, either by word or
mouth or by writing. The right extended not merely to the
matter which he was entitled to circulate but also to the
volume of circulation. Although the impugned Act and the
Order placed restraints on the volume of circulation, their
very object was directed against circulation. Thus both
interfered with the freedom of speech and expression. The
Court held that Article 19 [2] did not permit the State to
abridge the said right in the interest of general public.
The Court also held that the State could not make a law
which directly restricted one guaranteed freedom for
securing the better enjoyment of another freedom. Freedom
of speech could not be restricted for the purpose of regulating the commercial aspect of the activities of
newspapers. In this connection, the following observations
of the Court are relevant:
"Its object thus is to regulate something
which, as already stated, is directly related
to the circulation of a newspaper. Since
circulation of a newspaper is a part of the
right of freedom of speech the Act must be
regarded as one directed against the freedom
of speech. It has selected the fact or thing
which is an essential and basic attribute of
the conception of the freedom of speech, viz.,
the right to circulate one’s views to all whom
one can reach or care to reach for the
imposition of a restriction. It seeks to
achieve its object of enabling what are termed
the smaller newspapers to secure larger cir-
culation by provisions which without disguise
are aimed at restricting the circulation of
what are termed the larger papers with better
financial strength. The impugned law far from
being one, which merely interferes with the
right of freedom of speech incidentally, doeshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 109
so directly though it seeks to achieve the end
by purporting to regulate the business aspect
of a newspaper. Such a course is not
permissible and the courts must be ever
vigilant in guarding perhaps the most precious
of all the freedoms guaranteed by our
Constitution. The reason for this is obvious.
The freedom of speech and expression of
opinion is of paramount importance under a
democratic Constitution which envisages
changes in the composition of legislatures and
governments and must be preserved. No doubt,
the law in question was made upon the rec-
ommendation of the Press Commission but since
its object is to affect directly the right of
circulation of newspapers which would
necessarily undermine their power to influence
public opinion it cannot but
128
be regarded as a dangerous weapon which is
capable of being used against democracy
itself.
x x x x x x
The legitimacy of the result intended to be
achieved does not necessarily imply that every
means to achieve it is permissible; for even
if the end is desirable and permissible, the
means employed must not transgress the limits
laid down by the Constitution, if they
directly impinge on any of the fundamental
rights guaranteed by the Constitution it is no
answer when the constitutionality of the
measure is challenged that apart from the
fundamental right infringed the provision is
otherwise legal.
Finally it was said that one of its objects is
to give some kind of protection to small or
newly started newspapers and, therefore, the
Act is good. Such an object may be desirable
but for attaining it the State cannot make
inroads on the right of other newspapers which
Art. 19 [1] (a) guarantees to them. There may
be other ways of helping them and it is for
the State to search for them but the one they
have chosen falls foul of the Constitution.
To repeat, the only restrictions which may be
imposed on the rights of an individual under
Art. 19 [1] (a) are those which cl. [2] of Art
19 permits and no other".
12. In Bennett Coleman & Co. & Ors. v. Union of India &
Ors. [(1972) 2 SCC 788], the majority of the Constitution
Bench held that newspapers should be left free to determine
their pages, their circulation and their new edition within
their quota which has been fixed fairly. It is an
abridgment of freedom of expression to prevent a common
ownership unit from starting a new edition or a new newspaper. A common ownership unit should be free to start a new
edition out of their allotted quota and it would be logical
to say that such a unit can use its allotted quota for
changing its page structure and circulation of different
editions of same paper. The compulsory reduction to ten
pages offends Article 19 [1] (a) and infringes the freedom
of speech and expression. Fixation of page limit will not
only deprive the petitioners of their economic viability,
but will also restrict the freedom of expression by reasonhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 109
of the compulsive reduction of page level entailing
reduction of circulation and including the area of coverage
for news and views. Loss of advertisements may not only
entail the closing down, but will also affect the
circulation and thereby impinge on freedom of speech and
expression. The freedom of press entitles newspapers to
achieve any volume of circulation. It was further held that
the machinery of import control cannot be utilised to curb
or control circulation or growth or freedom of
newspapers.The news print control policy was in effect a
newspaper control policy and a newspaper control policy is
ultra vires the Import Control Act and the Import Control
Order. The majority further held that by the freedom of
press is meant the right of citizens to speak and publish
and express their views. The freedom of the press embodies
the right of the people to read and it is not ante-thetical
to the right of the people to speak and express. The
freedom of speech and expression is not only in the volume
of circulation but also in the volume of news and views.
The press has the right of free publication and their
circulation without any obvious restraint on publication.
If the law were to single out press
129
for laying down prohibitive burdens on it that would
restrict circulation, penalise freedom of choice as to
personnel, prevent newspapers from being started and compel
the press to Government aid. This would violate Article 19
[1] (a) and would fall outside the protection afforded by
Article 19 [2]. The First Amendment to the American
Constitution contains no exception like our Article 19 [2].
Therefore, American decisions have evolved their own
exceptions. The American decisions establish that a
Government regulation is justified in America as an
important essential Government interest which is unrelated
to the suppression of free expression. The true test is
whether the effect of the impugned action is to take away or
abridge fundamental rights. The object of the law or
executive action is irrelevant when it is established that
the petitioner’s fundamental right is infringed.
13. In Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors.
v. Union of India & Ors. [(1985) 1 SCC 641 ], the Court held
that the expression "freedom of the press" has not been used
in Article 19, but it is comprehended within Article 19 [1]
(a). This expression means a freedom from interference from
authority which would have the effect of interference with
the content and circulation of newspapers. There cannot be
any interference with that freedom in the name of public
interest. The purpose of the press is to advance the public
interest by publishing facts and opinions without which
democratic electorate cannot make responsible judgments.
Freedom of the press is the heart of social and political
intercourse. It is the primary duty of the Courts to up-
,,hold the freedom of the press and invalidate all laws or
administrative actions which interfere with it contrary to
the constitutional mandate. The freedom of expression has
four broad social purposes to serve: [i] it helps an
individual to attain self fulfilment, [ii] it assists in the
discovery of truth, [iii] it strengthens the capacity of an
individual in participating in decision-making and [iv] it
provides a mechanism by which it would be possible to
establish a reasonable balance between stability and social
change. All members of the society should be able to form
their own beliefs and communicate them freely to others. In
sum, the fundamental principle involved here is the people’s
right to know. Freedom of speech and expression should,http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 109
therefore, receive a generous support from all those who
believe in the participation of people in the
administration. It is on account of this special interest
which society has in the freedom of speech and expression
that the approach of the Government should be more cautious
while levying taxes on matters concerning newspaper industry
than while levying taxes on other matters.The Courts are
there always to strike down curtailment of freedom of press
by unconstitutional means. The delicate task of determining
when it crosses from the area of profession, occupation,
trade, business or industry into the area of freedom of
expression and interferes with that freedom is entrusted to
the Courts. In deciding the reasonableness of restrictions
imposed on any fundamental right the Court should take into
consideration the nature of the right alleged to have been
infringed, the underlying purpose of the restrictions
imposed, the disproportion of the imposition and the
prevailing conditions including the social values whose
needs are sought to be satisfied by means of the
restrictions. The imposition of a tax like the custom duty
on
130
news print is an imposition of tax on knowledge and would
virtually amount to a burden imposed on a man for being
literate and for being conscious of his duty as a citizen to
inform himself of the world around him. The pattern of the
law imposing custom duty and the manner in which it is
operated, to a certain extent, exposes the citizens who are
liable to pay the custom duties to the vagaries of executive
discretion.
14. In Odyssey Communications Pvt. Ltd. v. Lokvidayan
Sanghatana and others [(1988) 3 SCC 410 ], it was held that
the right of citizens to exhibit films on Doordarshan
subject to the terms and conditions to be imposed by the
Doordarshan is a part of the fundamental right of freedom of
expression guaranteed under Article 19 [1] (a) which can be
curtailed only under circumstances set out under Article 19
[2]. The right is similar to the right of citizen to public
his views through any other media such as newspapers, magazines, advertisement hoarding etc. subject to the terms and
conditions of the owners of the media. The freedom of
expression is a preferred right which is always very
zealously guarded by the Supreme Court. However, on the
question whether a citizen has a fundamental right to establish a private broadcasting station or T.V. centre, the
Court reserved its opinion for decision in an appropriate
case. The matter had come up before this Court against an
interim injunction order issued by the High Court as a
result of which 12th and 13th episodes of the film "HoniAnhoni" could not be telecast on the scheduled dates. The
Court held that it was not the case of the writ petitioners
before the High Court that the exhibition of the said serial
was in contravention of any specific law or direction issued
by the Government. They had also not alleged that the
Doordarshan had shown any undue favour to the appellant and
the sponsoring institutions resulting in any financial loss
to the public exchequer. The objection to the exhibition of
the film had been raised by them on the basis that it was
likely to spread false or blind beliefs among the members of
the public. They had not asserted any right conferred on
them by any statute or acquired by them under a contract
which entitled them to secure an order of temporary
injunction. The appellant before this court had denied that
the exhibition of the serial was likely to affect
prejudicially the wellbeing of the people. The Union ofhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 109
India and Doordarshan had pleaded that the serial was being
telecast after following the prescribed procedure and taking
necessary precautions. The writ petitioners had not
produced any material. apart from their own statements to
show" that the exhibition of the serial was prima facie
prejudicial to the community. This Court held that the High
Court had overlooked that the issue of an order of interim
injunction would infringe the fundamental right of the
producer of a serial. In the absence of any prima facie
evidence of gross prejudice that was likely to be caused to
the public generally by the exhibition of the serial, it was
not just and proper to issue an order of temporary injunction.
15. In S. Rangarajan v. P. Jagjivan Ram & Ors. [(1989) 2
SCC 574], it was held that the-freedom of speech under Article 19 [1] (a) means the right to express one’s opinion by
words of mouth, writing, printing, picture or in any other
manner. It would thus include the freedom of communication
and,their right to propagate or
131
publish opinion. The communication of ideas could be made,
through any medium, newspaper, magazine or movie. But this
right is subject to reasonable restriction in the larger
interests of the community and the country set out in
Article 19 [2]. These restrictions are intended to strike a
proper balance between the liberty guaranteed and the social
interests specified in Article 19 [2]. This is the
difference between the First Amendment to the U.S.
Constitution and Article 19 of our Constitution. The
decisions bearing on the First Amendment are, therefore, not
useful to us except the broad principle and purpose of the
guarantee. The Court, in this connection, referred to the
U.S. decisions in Mutual Film Corporation v. Industrial
Commission [236 US 230 (1915)], Burslyn v. Wilson [343 US
495] and Schenck v. United States [249 US 47]. The Court
further held that there should be a compromise between the
interest of freedom of expression and social interests. The
Court cannot simply balance the two interests as if they are
of equal weight. The Court’s commitment to freedom of
expression demands that it cannot be suppressed unless the
situations created by allowing the freedom are pressing and
the community interest is endangered. The anticipated
danger should not be remote, conjectural or far-fetched. It
should have proximate and direct nexus with the expression.
The expression of thought should be intrinsically dangerous
to the public interests. It should be inseparably locked up
with the action contemplated like the equivalent of a "spark
in a powder keg". Though movie enjoys the guarantee under
Article 19 [1] (a), there is one significant difference
between the movie and other modes of communication. Movie
motivates thought and action and assures a high degree of
attention and retention. In view of the scientific improvements in photography and production, the present movie is a
powerful means of communication. It has a unique capacity
to disturb and arouse feelings. It has much potential for
evil as it has for good. With these qualities and since it
caters for mass audience who are generally not selective
about what they watch, the movie cannot be equated with
other modes of communication. It cannot be allowed to
function in a free marketplace just as does the newspaper or
magazines. Censorship by prior restraint is, therefore, not
only desirable but also necessary. But the First Amendment
to the U.S. Constitution does not permit any prior
restraint, since the guarantee of free speech is in
unqualified terms. Censorship is permitted mainly on thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 109
ground of social interests specified under Article 19 [2]
with emphasis on maintenance of values and standards of
society. Therefore, censorship with prior restraint must
necessarily be reasonable that could be saved by the well
accepted principles of judicial review. The standard to be
applied by the board or courts for judging the film should
be that of an ordinary man of common sense and prudence and
not that of an out of the ordinary or hypersensitive man.
The board should exercise considerable circumspection on
movies affecting the morality or decency of our people and
cultural heritage of the country. The moral values in
particular, should not be allowed to be sacrificed in the
guise of social change or cultural assimilation. The path
of right conduct shown by the great sages and thinkers of
India and the concept of ’Dharam’ [righteousness in every
respect], which are the bedrock of our civilisation, should
not be allowed to be shaken by unethical standards. But
this does not mean that the censors should have an orthodox
132
or conservative outlook. Far from it, they must be
responsive to social change and they must go with the
current climate. However, the censors may display more
sensitivity to movies which will have a markedly deleterious
effect to lower the moral standards of those who see it.
16. However, the producer may project his own message
which the others may not approve of it. But he has a right
to ’think out’ and put the counter-appeals to reason. It is
a part of a democratic give and take to which one could
complain. The State cannot prevent open discussion and open
expression, however hateful to its policies. Everyone has a
fundamental right to form his own opinion on any issue of
general concern. He can form and inform by any legitimate
means. The democracy is a government by the people via open
discussion. The democratic form of government itself
demands its citizens an active and intelligent participation
in the affairs of the community. The public discussion with
people’s participation is a basic feature and a rational
process of democracy which distinguishes it from all other
forms of government.
17. Dealing with the film in question, the Court further
observed that the film in the present case suggests that the
existing method of reservation on the basis of caste is bad
and reservation on the basis of economic backwardness is
better. The film also deprecates exploitation of people on
caste consideration. This is the range and rigours of the
film. There is no warrant for the view that the expression
in the film by criticism of reservation policy or praising
the colonial rule will affect the security of the State or
sovereignty and integrity of India. There is no utterrance
in the film threatening to overthrow the government by
unlawful or unconstitutional means or for secession; nor is
there any suggestion for impairing the integration of the
country. Two Revising Committees have approved the film.
The members thereof come from different walks of life with
variegated experiences. They represent the cross-section of
the community. They have judged the film in the light of
the objectives of the Act and the guidelines provided for
the purpose. There is nothing wrong or contrary to
Constitution in approving the film for public exhibition.
The producer or as a matter of fact, any other person has a
right to draw the attention of the government and people
that the existing method of reservation in educational
institutions overlooks merits. Whether this view is right
or wrong is another matter altogether and at any rate, the
Court is not concerned with its correctness or usefulness tohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 109
the people. The Court is only concerned whether such a view
could be advocated in a film. To say that one should not be
permitted to advocate that view goes against the first
principle of our democracy. If the film is unobjectionable
and cannot constitutionally be restricted under Article 19
[2], freedom of expression cannot be suppressed on account
of threat of demonstration and processions or threats of
violence. That would tantamount to negation of the rule of
law and a surrender to blackmail and intimidation. It is
the duty of the State to protect the freedom of expression
since it is a liberty guaranteed against the State. The
State cannot plead its inability to handle the hostile
audience problem. Freedom of expression which is legitimate
and constitutionally protected cannot be held to ransom by
an intolerant group of people. The fundamental freedom
under Article 19
133
[1] (a) can be reasonably restricted only for the purposes
mentioned in Article 19 [2] and the restriction must be
justified on the anvil of necessity and not the quicksand of
convenience or expediency. Open criticism of government
policies and operations is not a ground for restricting expression.
18. The views taken by this Court in the aforesaid
decisions have thereafter been repeated and reproduced in
the subsequent decisions.
19. In Printers (Mysore) Ltd. & Anr v. Asst. Commercial
Tax Officer & Ors. [(1994) 2 SCC 434], it is reiterated that
the special treatment given to the newspapers has a
philosophy and historical background. Freedom of press has
been placed on a higher footing than other enterprises.
Though freedom of press is not expressly guaranteed as a
fundamental right, it is implicit in the freedom of speech
and expression. Freedom of press has always been a
cherished right in all democratic countries. Therefore, it
has rightly been described as the Fourth Estate. The democratic crede is of a State are judged today by the extent of
freedom the press enjoyed in that State. This decision
quotes from the. opinion of Douglas, J. in Terminiello v.
Chicago [93 L.ed 1131: 337 US 1 (1949)] that "acceptance by
Government of a dissident press is a measure of the maturity
of the nation".
20. In Life Insurance Corporation of India v. Professor
Manubhai D. Shah [(1992) 3 SCC 6371, the respondent-Executive Trustee of the Consumer Education and Research
Centre [CERC], Ahmedabad, after making research into the
working of the Life Insurance Corporation [LIC], published a
study paper portraying the discriminatory practice adopted
by the LIC by charging unduly high premia from those taking
out life insurance policies and thus denies access to
insurance coverage to a vast majority of people who cannot
afford to pay the high premium. A member of the LIC wrote a
counter article and published it in the daily newspaper
"Hindu". The respondent replied to the same in the said
newspaper. The member of LIC then published his counterreply in LIC’s house magazine. The respondent requested the
LIC to publish his rejoinder also in the said magazine.
That request was turned down. On these facts, the respondent filed a writ petition before the High Court
challenging the action of the LIC, among other things, on
the ground that his fundamental right under Article 19 [1]
(a) of the Constitution was violate by LIC by refusing to
publish his reply. The High Court held that under the pretext and guise of publishing a house magazine, the LIC
cannot violate the fundamental rights of the petitioner.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 109
This Court endorsing the view taken by the High Court held
that the LIC is ’State’ within the meaning of Article 12.
The LIC Act requires it to function in the best interest of
the community. The community is, therefore, entitled to
know whether or not this requirement of the statute is being
satisfied in the functioning of the LIC. The respondent’s
efforts in preparing the study paper was to bring to the
notice of the community that the LIC had strayed from its
path by pointing out that its premium rates were unduly high
when they could be low if the LIC avoided the wasteful
indulgences. The endeavour was to enlighten the community
of the drawbacks and shortcomings of the LIC and to pinpoint
the area where improvement was
134
needed and was possible. By denying to the policy-holders,
the information contained in the rejoinder prepared by the
respondent, the LIC cannot be said to be acting in the best
interest of the community. There was nothing offensive in
the rejoinder which fell within the restriction clauses of
Article 19 [2]. Nor was it prejudicial to the members of
the community or based on imaginary or concocted material.
On the basis of the fairness doctrine the LIC was under an
obligation to publish the rejoinder. The respondent’s fundamental right to speech and expression clearly entitled him
to insist that his views on the subject should reach those
who read the magazine so that they have complete picture
before them instead of a one-side or distorted picture The
Court also pointed out that the attitude of the LIC in
refusing to publish the rejoinder in their magazine financed
from public funds, can be described as both unfair and
unreasonable unfair because fairness demanded that both
view-points were placed before the readers and unreasonable
because there was no justification for refusing publication.
The monopolistic State instrumentality which survives on
public funds cannot act in an arbitrary manner on the
specious plea that the magazine is an in-house one and it is
a matter of its exclusive privilege to print or refuse to
print the rejoinder. By refusing to print and publish the
rejoinder’, the LIC had violated respondent’s fundamental
right. The Court must be careful to see that it does not
even unwittingly’ aid the effort to defeat the parties’
right. Every free citizen has an undoubted right to lay
what sentiments he pleases before the public. Freedom to
air one’s views is the lifeline of any democratic
institution and any attempt to stifle, suffocate or gag this
right would sound a death-knell to democracy and would help
usher in autocracy or dictatorship. This Court has always
placed a broad interpretation on the value and content of
Article 19 [1] (a), making it subject only to the
restrictions permissible under Article 19 [2]. Efforts by
intolerant authorities to curb or suffocate this freedom
have always been firmly repelled, more so when public
authorities have betrayed autocratic tendencies. The Court
then went on to observe:
broadly construed to include the freedom to
circulate one’s views by words of mouth or in
writing or through audio-visual
instrumentalities. It, therefore, includes
the right to propagate one’s views through the
print media i.e., periodicals, magazines or
journals or through any other communication
channel e.g. the radio and the television.
The right extends to the citizen being permit-
ted to use the media to answer the criticism
levelled against the view propagated by him.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 109
The print media, the radio and the tiny screen
play the role of public educators, so vital to
growth of a healthy democracy. These
communication channels are great purveyors of
news and views and make considerable impact on
the minds of the readers and viewers and are
known to mould public opinion on vital issues
of national importance. Modem communication
mediums advance public interest by informing
the public of the events and developments that
have taken place and thereby educating the
voters, a role considered significant for the
vibrant functioning of a democracy.
Therefore, in any set-up, more so in a
democratic set-up like ours, dissemination of
news and views for popular consumption is a
must and any attempt to deny the same must be
frowned upon unless it falls within the
mischief of Article 19 [2].This freedom must,
however,be exercised with
135
circumspection and care must be taken not to
trench on the rights of other citizens or to
jeopardise public interest.
A constitutional provision is never static, it
is ever-evolving and ever-changing and,
therefore, does not admit of a narrow,
pedantic or syllogistic approach. The Con-
stitution-makers employed broad phraseology
while the fundamental tights so that they may
be able to cater to the needs of a changing
society. Therefore, constitutional provisions
must receive a broad interpretation and the
scope and ambit of such provisions, in
particular the fundamental rights, should not
be cut down by too astute or too restricted an
approach, unless the context otherwise re-
quires.
21.The facts in the other case which was disposed of
simultaneously by the same judgment were that the
Doordarshan refused to telecast a documentary film on the
Bhopal Gas Disaster titled ’Beyond Genocide’ produced by the
respondent Ciment Foundation on the grounds that [i] the
film was outdated, [ii] it had lost its relevance, [iii] it
lacked moderation and restraint, [iv] it was not fair and
balanced, [v] political parties were raising various issues
concerning the tragedy, [vi] claims for compensation by the
victims were sub judice, [vii] the film was.likely to create
commotion in the already charged atmosphere and [viii] the
film criticised the action of the State Government and it
was not permissible under the guidelines. The respondent
filed a writ petition in the High Court on the ground of
violation of his fundamental right under Article 19 [1] (a)
and for a mandamus to the Doordarshan to telecast the film.
The High Court held that the respondent’s right under
Article 19 [1] (a) obliged the Doordarshan to telecast the
film and directed the Doordarshan to telecast the film at a
time and date, convenient to it keeping in view the public
interest, and on such terms and conditions as it would like
to impose in accordance with the law. In the appeal against
the said decision filed in this Court, the Court held that
once it has recognised that the film maker has the
fundamental right under Article 19 [1] (a) to exhibit the
film, the onus lies on the party which claims that it was
entitled to refuse enforcement of this right by virtue ofhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 109
law made under Article 19 [2] to show that the film did not
conform to requirements of that law. Doordarshan being a
State-controlled agency funded by public funds could not
have denied access to screen except on valid grounds. The
freedom conferred on a citizen by Article 19 [1] (a)
includes the freedom to communicate one’s ideas or thoughts
through a newspaper, a magazine or a movie. Traditionally,
prior restraints, regardless of their form, are frowned upon
as threats to freedom of expression since they contain
within themselves forces which if released have the
potential of imposing arbitrary- and at times direct
conflict with the right of another citizen. Censorship by
prior restraint, therefore, seems justified for the protection of the society from the ill-effects that a motion
picture may produce if unrestricted exhibition is allowed.
Censorship is thus permitted to protect social interests
enumerated in Article 19 [2] and Section 5-B of the Cinema
to graph Act. For this reason, need for prior restraint has
been recognised and our laws have assigned a specific role
to the censors, as such is the need in a rapidly changing
societal structure. But since permissible restrictions,
albeit reasonable, are all the same restrictions, they are
bound to be viewed as anathema, in that, they are in the
nature of
136
curbs or limitations on the exercise of the right and are,
therefore, bound to be viewed with suspicion, thereby
throwing a heavy burden on the authorities that seek to
impose them to show that the restrictions are reasonable and
permissible in law. Such censorship must be reasonable and
must answer the test of Article 14.
22. In this connection, it will be interesting also to know
the content of the right to freedom of speech and expression
under the First Amendment to the American Constitution where
the freedom of press is exclusively mentioned as a part of
the said right unlike in Article 19 [1] (a) of our
Constitution. Further, the restrictions on the right are
not spelt out as in our Constitution under Article 19 [2].
But the U.S. Supreme court has been reading some of them as
implicit in the right. In principle, they make no
difference to the content of the right to the freedom of
speech and expression under our Constitution.
23. In National Broadcasting Company v. United States
of America [319 US 190238 : 87 L ed 1344], it was held,
inter alia, that the wisdom of regulations adopted by the
Federal Communications Commission is not a matter for the
courts, whose duty is at an end when they find that the
action of the Commission was based upon findings supported
by evidence, and was made pursuant to authority granted by
Congress.
24. In Joseph Burstyn v Lewis A. Wilson [343 US 495: 96 L
ed 1098] a licence granted for the exhibition of a motion
picture was rescinded by the appropriate New York
authorities -on the ground that the picture was
"sacrilegious" within the meaning of a statute requiring the
denial of a licence if a film was "sacrilegious". The
statute was upheld by the State courts. The Supreme Court
unanimously reversed the decision of the State courts.
Disapproving a contrary theory expressed in Mutual Film
Corp. v. Industrial Com. of Ohio [236 US 230: 59 L ed 442],
six members of the Supreme Court in an opinion of Clerk, J.
held that the basic principles of freedom of speech and
press applied to motion pictures, even though their
production, distribution, and exhibition is a large-scale
business conducted for profit. The court recognised thathttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 109
motion pictures are not necessarily subject to the precise
rules governing any other particular method of expression,
but found it not necessary to decide whether a State may
censor motion pictures under a clearly drawn statute, and
limited its decision to the holding that the constitutional
guarantee of free speech and press prevents a state from
banning a film on the basis of a censor’s conclusion that it
is " sacrilegious". Reed, J. in a concurrent opinion
emphasised that the question as to whether a state may
establish a system for the licensing of motion pictures was
not foreclosed by the court’s opinion. Frankfurter, J. with
Jackson and Burton, JJ. held that the term "sacrilegious" as
used in the statute was unconstitutionally vague.
25.In Red Lion Broadcasting Co. etc. el. al. v. Federal
Communications Commission et. al. and United Slates et. al.
v. Radio Television News Directors Association et al. [395
US 367: 23 L Ed 2d 3711 which two cases were disposed of by
common judgment, the facts were that in the first case, the
Broadcasting Company carried as a part of "Christian
Crusade" series, a 15-minute broadcast in which a third
person’s honesty and character were at-
137
tacked. His demand for free reply time was refused by the
broadcasting station. Federal Communications Commission
[FCC] issued a declaratory order to the effect that the
broadcasting station had failed to meet its obligation under
the FCC’s fairness doctrine. The Court upheld the FCC’s
directions.
26.In the second case, the FCC after the commencement of the
litigation in the same case made the personal attack aspect
of the fairness doctrine more precise and more readily
enforceable. The Court upheld the FCC’s rules overruling
the view taken by the Court of Appeals that the rules were
unconstitutional as abridging the freedom of speech and
press.
27.The Court dealing with the two cases held:
"Just as the Government may limit the use of
sound-amplifying equipment potentially so
noisy that it drowns out civilized private
speech, so may the Govenrnment limit the use
of broadcast equipment. The right of free
speech of a broadcaster, the user of a sound
track, or any other individual does not
embrace a right to snuff out the free speech
of others.
x x x x x x x
for public broadcasting were limited in
number, it was essential for the Government to
tell some applicants that they could not
broadcast at all because there was room for
only a few.
x x x x x x x
Where there are substantially more individuals
who want to broadcast than there are
frequencies to allocate, it is idle to posit
an unabridgeable First Amendment right to
broadcast comparable to the right of every
individual to speak, write, or publish. If
100 persons want broadcast licences but there
are only 10 frequencies to allocate, all of
them may have the same "right" to a license;
but if there is to be any effective
communication by radio, only a few can be
licensed and the rest must be barred from the
airwaves. It would be strange if the Firsthttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 109
Amendment, aimed at protecting and furthering
communications, prevented the government from
making radio communication possible by
requiring licenses to broadcast and by
limiting the number of licenses so as not to
overcrowd the spectrum.
This has been the consistent view of the
Court. Congress unquestionably has the power
to grant and deny licenses and to eliminate
existing stations... No one has a First
Amendment right to a license or to monopolize
a radio frequency; to deny a station license
because "the public interest" requires it "is
not a denial of free speech.
By the same token, as far as the First
Amendment is concerned those who are licensed
stand no better than those to whom licenses
are refused. A license permits broadcasting,
but the licensee has no constitutional right
to be the one who holds the license or to
monopolize a radio frequency to the exclusion
of his fellow citizenis. There is nothing in
the First Amendment which prevents the
Govenunent from requiring a licensee to share
his frequency with others and to conduct
himself as a proxy or fiduciary with
obligations to present those views and voices
which are representative of his community and
which would otherwise, by necessity, be barred
from the airwaves.
This is not to say that the First Amendment is
irrelevant to public broad-
138
casting. On the contrary, it has a major role
to play as the Congress itself recognized,
which forbids FCC interference with "the right
of free speech by means of radio
communication.
Because of the scarcity of radio frequencies,
the Government is permitted to put restraints
on licensees in favour of others whose views
should be expressed on this unique medium.
But the people as a whole retain their
interest in free speech by radio and their
collective right to have the medium function
consistently with the ends and purposes of the
First Amenchnent. It is the right of the
viewers and listeners, not the right of the
broadcasters, which is paramount...
It is the purpose of the First Amendment to
preserve an uninhibited marketplace of ideas
in which truth will ultimately prevail, rather
than to countenance monopolization of that
market, whether it be by the Government itself
or a private licensee... It is the right of
the public to receive suitable access to
social, political, esthetic, moral, and other
ideas and experiences which is crucial here.
That right may not constitutionally be
abridged either by Congress or by the FCC...
right on licensees to prevent others from
broadcasting on t ’their" frequencies and no
right to an unconditional monopoly of a scarce
resource which the Government has denied
others the right to use.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 109
x x x x x x x
Nor can we say that it is inconsistent with
the First Amendment goal of producing an
informed public capable of conducting its own
affairs to require a broadcaster to permit
answers to personal attacks occurring in the
course of discussing controversial issues, or
to require that the political opponents of
those endorsed by the station be given a
chance to communicate with the public.
Otherwise, station owners and a few networks
would have unfettered power to make time
available only to the highest bidders, to com-
municate only their own views on public
issues, people and candidates, and to permit
on the air only those with whom they agreed.
There is no sanctuary in the First Amendment
for unlimited private censorship operating in
a medium not open to all. "Freedom of the
press from governmental interference under the
First Amendment does not sanction repression
of that freedom by private interests.
x x x x x x x
licensees given the privilege of using scarce
radio frequencies as proxies for the entire
community, obligated to give suitable time and
attention to matters of great public concern.
To condition the granting or renewal of
licenses on a willingness to present
representative community views on
controversial issues is consistent with the
ends and purposes of those constitutional
provisions forbidding the abridgment of
freedom of speech and freedom of the press.
Congress need not stand idly by and permit
those with licenses to ignore the problems
which beset the people or to exclude from the
airways anything but their own views of
fundamental questions....
Licenses to broadcast do not confer ownership
of designated frequencies, but only the
temporary privilege of using them."
28.Referring to the contention that although at one time the
lack of available frequencies for all who wished to use them
justified the Government’s choice, of those
139
who would best serve the public interest by acting as proxy
for those who would present differing views, or by giving
the latter access directly to broadcast facilities, the said
condition no longer prevailed to invite continuing control,
the Court held:
"Scarcity is not entirely a thing of the past.
Advances in technology, such as microwave
transmission, have led to more efficient
utilisation of the frequency spectrum, but
uses for that spectrum have also grown apace.
Portions of the spectrum must be reserved for
vital uses unconnected with human
communication, such as radio-navigational aids
used by aircraft-and vessels. Conflicts have
even emerged between such vital functions as
defense preparedness and experimentation in
methods of averting n-ddair collisions through
radio warning devices. "Land mobile services"
such as police, ambulance, fire department,http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 109
public utility, and other communications
system have been occupying an increasingly
crowded portion of the frequency spectrum and
there are, apart from licensed amateur radio
operators’ equipment, 5,000,000 transmitters
operated on the "citizens’ band" which is also
increasingly congested. Among the various
uses for radio frequency space, including
marine, aviation, amateur, military, and
common carrier users, there are easily enough
claimants to permit use of the whole with an
even smaller allocation to broadcast radio and
television uses than now exists.
Comparative hearings between competing
applicants for broadcast spectrum space are by
no means a thing of the past. The radio
spectrum has become so. congested that at
times it has been necessary to suspend new
applications. The very high frequency
television spectrums, in the country’s major
markets, ahmost entirely occupied, although
space reserved for ultra high frequency
television transmission, which is a relatively
recent development as a commercially viable
alternative, has not yet been completely
filled.
The rapidity with which technological advances
succeed one another to create more efficient
use of spectrum space on the one hand, and to
create new uses for that space by ever growing
numbers of people on the other, makes it
unwise to speculate on the future allocation
of that space. It is enough to say that the
resource is one of considerable and growing
importance whose scarcity impelled its
regulation by an agency authorised by
Congress. Nothing in this record, or in our
own researches, convinces us that the resource
is no longer one for which there are more
immediate and potential uses than can be
accommodated, and for which wise planning is
essential. This does not mean, of course,
that every possible wavelength must be
occupied at every hour by some vital use in
order to sustain the congressional judgment.
The substantial capital investment required
for many uses, in addition to the potentiality
for confusion and interference inherent in any
scheme for continuous kaleidoscopic
reallocation of all available space may make
this unfeasible. The allocation need not be
made at such a breakneck pace that the
objectives of the allocation are themselves
imperiled.
Even where there are gaps in spectrum
utilization, the fact remains that existing
broadcasters have often attained their present
position because of their initial government
selection in competition with others before
new technological advances opened new
opportunities for further uses. Long
experience in broadcasting, confirmed habits
of listeners and viewers, network affiliation,
and other advantages in program procurement
give existing broadcasters a substantialhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 109
advantage over new entrants, even where new
entry is technologically possible. These
140
advantages are the fruit of a preferred
position conferred by the Government. Some
present possibility for new entry by competing
stations is not enough, in itself, to render
unconstitutional the Government’s effort to
assure that a broadcaster’s programming ranges
widely enough to serve the public interest.
In view of the scarcity of broadcast
frequencies, the Government’s role in al-
locating those frequencies, and the legitimate
claims of those unable without governmental
assistance to gain access to those frequencies
for expression of their views, we hold the
regulations and ruling at issue here are both
authorized by statute and constitutional."
29. In Columbia Broadcasting System etc. etc. v. Democratic
National Committee etc. etc.[412 US 94 : 36 L Ed 2d 772], in
separate decisions rejecting the contentions that the
general policy of certain radio and television broadcast
licensees of not selling any editorial advertising time to
individuals or groups wishing to speak out on public issues
violated the Federal Communications Act of 1934 and the
First Amendment, such contentions having been asserted in
actions instituted by a national Organisation of businessmen
opposed to United States involvement in Vietnam and by the
Democratic National Committee, the US Court of Appeals for
the District of Columbia Circuit reversed the Commission.
However, the US Supreme Court reversed the Court of Appeals.
Burger, C.J. expressing the views of the six members of the
Court held:
"...[1] the First Amendment issues involved in
the case at bar had to be evaluated within the
framework of the statutory and regulatory
scheme that had developed over the years,
affording great weight to the decisions of
Congress and the experience of the Federal
Communications Commission, and [2] under the
Federal Communications Act and the
Commission’s "fairness doctrine," broadcast
licensees had broad journalistic discretion in
the area of discussion of public issues.
It was also held, expressing the views of five
members of the court [Part IV of the opinion],
that [3] neither the public interest standards
of the Federal Communications Act nor the
First Amendment, assuming that there was
governmental action for First Amendment
purposes, required broadcasters to accept
editorial advertisements, notwithstanding that
they accepted commercial advertisements, and
[4] the Commission was justified in concluding
that the public interest would not be served
by a system affording a right of access to
broadcasting facilities for paid editorial
advertisements, since such a system would be
heavily weighted in favor of the financially
affluent, :would jeopardize effective
operation of the Commission’s "fairness
doctrine", and would increase government
involvement in broadcasting by requiring the
Commission’s daily supervision of broad-
casters’ activities...... a broadcaster’s re-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 109
fusal to accept any editorial advertisements
was not governmental action for purposes of
the First Amendment, since private
broadcasters, even though licensed and
regulated to some extent by the government,
were not instrumentalities or "partners" of
the government for First Amendment purposes,
and since the Commission, in declining to
reject the broadcasters’ policies against
accepting editorial -advertisements, had not
fostered or required such policy".
30.It may be mentioned here that unlike in this country, in
United States, the private individuals and institutions are
141
given licences to have their own broadcasting stations and
hence the right of the private broadcasters against the
right of others who did not own the broadcasting stations
but asserted their right of free speech and expression were
pitted against each other in this case and the decision has
mainly turned upon the said balancing of rights of both
under the First Amendment. It was in substance held that
any direction to the private broadcasters by the Government
to sell advertising time to speak out on public issues
violated the protection given by the First Amendment to the
private broadcasters against Government control.
31.In Federal Communications Commission et al. v. WNCN
Listeners Guild et al. [450 Us 582 : 67 L Ed 2d 521], a
number of citizen groups interested in fostering and
preserving particular entertainment formats petitioned for
review of the Policy Statement of Federal Communications
Commission [FCC] in the US Court of Appeals for the District
of Columbia Circuit. The Court held that the Policy
Statement was contrary to the Communications Act of 1934.
The US Supreme Court reversed the decision of the Court of
Appeals by majority, holding, inter alia, that the Policy
Statement was not inconsistent with the Communications Act
since the FCC provided a rational explanation for its
conclusion that reliance on the market was the best method
of promoting diversity in entertainment formats and that the
FCC’s judgment regarding how the public interest is best
served was entitled to substantial judicial deference and
its implementation of the public interest standard, when
based on a rational weighing of competing policies was not
to be set aside. Marshall and Brennan, JJ., however, held
that in certain limited circumstances, the FCC may be
obliged to hold a hearing to consider whether a proposed
change in a licensee’s entertainment programme format is in
the public interest and that the FCC’s Policy Statement
should be vacated since it did not contain a safety valve
procedure that allowed the FCC the flexibility to consider
applications for exemptions based on special circumstances
and since it failed to provide a rational explanation for
distinguishing between entertainment and non-entertainment
programming for purposes of requiring Commission review of
format changes.
32.In City of Los Angeles & Department of Water and Power v.
Preferred Communications, Inc. [476 US 488: 90 L ed 2d 480],
a cable television company asked a public utility and the
city of Los Angeles’s water and power department for
permission to lease space on their utility poles in order to
provide cable television service to part of the city. The
respondent-company was told that it must first obtain
franchise from the appellant-City which refused to grant one
on grounds that the company had failed to participate in an
auction that was to award a single franchise in the area.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 109
The respondent sued claiming violation of his right under
the free speech clause of the First Amendment. It was
alleged in the complaint that there was sufficient physical
capacity and the economic demand in the area at issue to
accommodate more than one cable company and that the city’s
auction process allowed it to discriminate among applicants.
As against this, the appellant argued that lack of space on
public utility structures, the limited economic demand, and
the practical and aesthetic disruptive effects on the public
right of way justified
142
its decision. The District Court dismissed the complaint.
On appeal, the US Court of Appeals reversed and remanded
’,or further proceedings. The US Supreme Court affirmed the
Court of Appeals. Rehnquist, J. expressing the unanimous
decision of the Court held:
"...[1]that the cable television company’s
complaint should not have been dismissed,
since the activities in which it allegedly,
sought to engage plainly implicated First
Amendment interests where they included the
communications of messages on a wide variety
of topics and in a wide variety of formats,
through original programming or by exercising
editorial discretion over which stations or
programs to include in its repertoire, but [2]
that it was not desirable to express any more
detailed views on the proper resolution of the
First Amendment question without a more thor-
oughly developed record of proceedings in
which the parties would have an opportunity to
prove those disputed factual assertions upon
which they relied."
33.The position of law on the freedom of speech and press
has been explained in [16 Am Jur 2d 3431 as under:
"The liberty of the press was initially a
right to publish without a license that which
formerly could be published only with one, and
although this freedom from previous. restraint
upon publication could not be regarded as
exhausting the guaranty of liberty, the
prevention of that restraint was a leading
purpose in the adoption of the First
Amendment. It is well established that
liberty of the press historically considered
and taken up by the Federal Constitution,
means principally, although not exclusively,
immunity from previous restraints or
censorships. Stated differently, the rule is
that an essential element of the liberty of
the press is its freedom from all censorships
over what shall be published and exemption
from control, in advance, as to what shall ap-
pear in print....
x x x x x x
The freedom of speech and press embraces the
right to distribute literature, and
necessarily protects the right to receive
literature which is distributed. It is said
that liberty in circulating is as essential to
the freedom as liberty of publishing, since
publication without circulation would be of
little value.
The right or privilege of free speech and
publication, guaranteed by the constitutionshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 109
of the United States and of the several
states, has its limitations and is not an
absolute right, although limitations are
recognised only in exceptional cases.
x x x x x x
The question of when the right of free speech
or press becomes wrong by excess is difficult
to determine. Legitimate attempts to protect
the public, not from the remote possible
effects of noxious ideologies, but from
present excesses of direct, active conduct are
not presumptively bad because they interfere
with and in some of their manifestations
restrain the exercise of the First Amendment
rights. The issue in every case is whether
the words used are used hi such circumstances
and are of such a nature as to create a clear
and present danger that they will bring about
substantive evils which the federal or state
legislatures have a right to prevent; it is a
question of proximity and degree.
x x x x x x x
The freedoms of speech and press are not
limited to particular media of ex-
143
pression. Verbal expression is, of course,
protected, but the right to express one’s
views in an orderly fashion extends to the
communication of ideas by handbills and
literature as well as by the spoken word.
Picketing carried on in a non labor context,
when free from coercion, intimidation, and
violence, is constitutionally guaranteed as a
right of free speech."
34. In "Civil Liberties & Human Rights" authored by David
Feldman, the justification for and limits of freedom of
expression are stated in the following words.
The liberty to express one’s self freely is important for a
number of reasons. Firstly, self-expression is a significant instrument of freedom of conscience and selffulfillment. Second justification concerns epistemology.
Freedom of expression enables people to contribute to
debates about social and moral values. The best way to find
the best or truest theory or model of anything is to permit
the widest possible range of ideas to circulate. Thirdly,
the freedom of expression allows political discourse which
is necessary in any country which aspires to democracy. And
lastly, it facilitates artistic scholarly endeavours of all
sorts.
35. The obvious connection between press freedom and
freedom of speech is that the press is a medium for
broadcasting information and opinion. Firstly, media
freedom as a tool of self-expression is a significant
instrument of personal autonomy. Secondly, as a channel of
communication, it helps to allow the political discourse in
a democracy. Thirdly, it helps to provide one of the
essential conditions in scholarships making possible the exchange and evaluation of theories, explanations and
discoveries, and lastly, it helps to promulgate a society’s
cultural values and facilitates the debate about them, advancing the development and survival of civilisation.
36.Referring to the reasons for regulating the broadcasting
media, the learned author has stated that, first, the
Government realises the potential of channels of mass
communication for contributing to democracy or undermininghttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 109
it. They hoped to foster a public service ethos in
broadcastings so that it would be a medium for educating
and improving the population. Secondly in order to do this
its was necessary to keep the media of mass communications
from having programme policy dictated entirely by market
forces. A strong pubic sector and regulation of the independent sector when one started to operate, were called for.
Thirdly, when commercial broadcasters appeared on the scene,
1 and a regulatory scheme was being developed for them, it
was thought to be important to preserve a diversity of ideas
by preventing oligopolistic concentrations of power in the
hands of a few, usually rich and conservative media
magnates, and to ensure that licences were granted only to
people who could be expected not to abuse the privilege.
The need to preserve propriety has been a motivating factor
in the regulation of commercial broadcasting over much of
the world. Fourthly, government hoped to ensure that
civilised standards were maintained, to uphold social
values. Fifthly, wave lengths for broadcasting were
limited. This purely technical consideration sharply
distinguishes broadcasting from newspapers, and justifies a
higher level of regulation. In theory, if not in practice,
there is nothing to prevent any number of newspapers being
pub-
144
lished simultaneously. The only controlling mechanism
needed is that of market forces. This is not true of
broadcasting. Some control over the allocation of wavelengths is ’needed in order to ensure that there are
sufficient for all legitimate broadcasters. Lastly, another
legitimate object of national regulation is to protect the
intellectual property rights of programme makers and
broadcasters. It is permissible on this ground for an
Organisation to prevent people from getting access to
programmes without paying proper licence fees. One way of
preventing this is to encode programme transmissions and to
restrict access to decoders to people who pay the fee.
37. The freedom to receive and to communicate information
and ideas without interference is an important aspect of the
freedom of free speech and expression. We may in this
connection refer to Article 10 of the European Convention on
Human Rights which states as follows:
" 10.1. Everyone has the right to freedom of
expression. This right shall include freedom
to hold opinions and to receive and impart
information and ideas without interference by
public authority and regardless of frontiers.
This article shall not prevent States from
requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities,
may be subject to such formalities,
conditions, restrictions or penalties as are
-prescribed by law and are necessary in a
democratic society, in the interests of na-
tional security, territorial integrity or pub-
lic safety, for the prevention of disorder or
crime, for the protection of health or morals.
for the protection of the reputation or rights
of others, for preventing the disclosure of
information received in confidence, or for
maintaining the authority and impartiality of
the judiciary."
38.The next question which is required to be answered ishttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 109
whether there is any distinction between the freedom of the
print media and that of the electronic media such as radio
and television, and if so, whether it necessitates more
restrictions on the latter media.
39. Eric Barendt in his book titled " Broadcasting Law
[1993 Edn.] which presents a comparative study of the law in
five’ legal systems, viz., Great Britain, France, Germany,
Italy and United States of America, has dealt with the
subject succinctly. He has referred to a number of reasons
which are generally put forward to justify broadcasting
regulations and has dealt with each of them. The first
reason advanced is that because the airwaves are a public
resource, the Government or some agency on its behalf, is
entitled to license their use for broadcasting on the terms
it sees fit. A similar argument can now be deployed in
respect of cable broadcasting where an authority must give
permission before roads can be dug up for laying cable. The
learned author states that the case is unconvincing for it
infers that it is right for the Government to regulate
broadcasting from the fact that it has opportunity to do
this. It would be perfectly possible for Government to
allocate frequencies for cable franchises without programme
conditions on the basis of a competitive tender and allow
the resale by the purchaser. The argument, according to the
author, therefore, does not work. It does not justify
broadcasting regulations but almost explains how it is
feasible. The author, however, does not accept the
objection to this
145
reason for regulation that thereby Government acts
improperly by using their licensing power to purchase
broadcasters’ constitutional right to speech. According to
the author, this argument is less persuasive as it assumes
that broadcasters enjoy the same constitutional rights of
free speech as individuals talking in a bar or leafletting
in a high street. The author then deals with the second
reason given for regulation of broadcasting, viz., scarcity
of frequencies and points out that this argument referred to
in Red Lion Broadcasting case [supra] is less clear than appears at first sight, since it is not clear whether the
scarcity of frequencies refers to the limited number
allocated by the Government as available for broadcasting or
to the actual numerical shortage of broadcasting stations.
If it is the former, the scarcity is an artificial creation
of the Government rather than a natural phenomenon since it
reserves a number of frequencies for the use of the army,
police and other public services. The Government is then
not in a good position to argue for restrictions on
broadcasters’ freedom. The author then points out that as
far as the actual scarcity of broadcasting stations is
concerned, there has been an increase in the last 20 years
in the broadcasting stations in the United States while
there are fewer newspapers than there used to be. Similar
developments have occurred in European countries in the same
period, especially, since the advent of cable and satellite.
Further the scarcity argument cannot be divorced from
economic considerations. The shortage of frequencies and
the high cost of starting up broadcasting channel explain
their dearth in comparison with the number of newspapers and
magazines in 1961. However, it is now probably as difficult
to finance a new newspaper as it is a private television
channel, if not more so. Lastly, the author points out that
the scarcity argument is much less tenable than it used to
be. Cable and satellite have significantly increased the
number of available or potentially available channels sohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 109
that there are more broadcasting outlets than there are
national or local daily newspapers. Dealing with the third
reason advocated for giving differential treatment to the
broadcasting, viz., the character of the broadcasting media,
the author points out that it is said that television and
radio, are more influential on public opinion than the
press, or at least are widely thought to be so. The majority
of the US Supreme Court in FCC v. Pacifica Foundation [438
US 726] said that they intrude into the home and are more
pervasive and are more difficult to control than the print
media. In particular, it is hard to prevent children from
being exposed to broadcast while it is relatively easy to
stop them looking at magazines and papers which in any case
they will not be able to read or purchase. These grounds
underpin the extension of legal control in Britain over
violent and sexually explicit programmes through the
establishment of Broadcasting Standard Council and the
strengthening of the impartiality rules. In Third
Television Case [57 B Verf GE 295, 3 22-3 (198 1)] the German Constitutional Court dealing with a different version of
this argument has held that regulation is necessary to
guarantee pluralism and programme variety, whether or not
there is a shortage of frequencies and other broadcasting
outlets. The free market will not provide for broadcasting
the same variety found in the range of press and magazine
titles. Hence programme content should be regulated and the
media monopolies should be cut down by the application of
anti-trust laws. Thus both the
146
US and the German arguments lay stress on the power of
television and its unique capacity to influence the public.
According to the learned author, the arguments are difficult
to assess. Broadcasting does not intrude into the home
unless listeners and viewers want it to be. From the point
of view of constitutional principles it is not easy to
justify imposition of greater limits on the medium on the
ground that it is more influential than the written words.
It cannot be right to subject more persuasive types of
speech to greater restraints than those-imposed on less
effective varieties. The author, however, accepts the view
of the majority of the US Supreme Court in Pacifica case
[supra] which regarded broadcasting, particularly
television, as a uniquely pervasive presence in the lives of
most people. More time is spent watching television than
reading. The presence of sound and picture in any home
makes it an exceptional potent medium. It may also be
harder to stop children having access to ’adult material’ on
television than to pornographic magazines. This may not
apply to subscription channels, enjoyment of which is
dependent on a special decoder. He also agrees that
experience in the United States and more recently in Italy
suggests that a free broadcasting market does not produce
the same variety as the press and book publishing markets
do. However, the author states that these three
justifications for broadcasting regulation are inconclusive
and it is doubtful whether the case is powerful enough to
justify the radically different legal treatment of the press
and broadcasting media. A separate question, according to
the author, is whether it is appropriate to continue to
treat radio in the same way as television since there is
generally a large choice of local, if not national radio
programmes and it is hard to believe that it exercises a
dominating influence on the formation of public attitudes.
The same question arises In respect of cable television.
Although a licence has to be obtained from a licensinghttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 109
authority, several franchises may be physically accommodated
and a wide band cable system may be able to carry upto 30 or
40 or even more channels. The scarcity rational, therefore,
seems inapplicable to cable, and further it is hard to
believe that this mode of broadcasting exercises such a
strong influence that stringent programme regulation is
justifiable. Dealing with the last reason advocated by a
leading American scholar, Lee Bollinger in his article
"Freedom of the Press and Public Access" and his essay "The
Rational of Public Regulation of the Media" and in
"Democracy and the MassMedia" [Cambridge (1990)] for the
divergent treatment of the press and broadcasting media, the
author points out that Bollinger accepts that there is no
fundamental difference in the character of the two mass
media, but argues that broadcasting being still relatively
new means of mass communication, it is understandable that
society has wanted to regulate it just as it has treated the
cinema with more caution than it has the theater. This
argument of Bollinger is based on the history of the two
media. Bollinger’s second argument is that society is
entitled to remedy the deficiencies of an unregulated press
with a regulated broadcasting system which may be preferable
to attempting to regulate both sectors... According to
Bollinger, regulation poses the danger of Government control, a risk which is reduced if one branch of the media is
left free. The author attacks this reason given by
Bollinger and states that it is an unsatisfactory compromise. If the regulation of the press is al-
147
ways wrong and perhaps unconstitutional and if there is no
significant difference between the two media, it follows
that the latter should also be wholly unregulated. The
author also points out that Bollinger’s argument attempts to
justify the unequal treatment of the liberties of the
broadcasters and newspaper proprietors and editors when in
all material respects, their position is identical.
40. The author then refers to the rights of viewers and
listeners which is referred to in Red Lion Broadcasting
case [supra] by White, J. of the US Supreme Court in the
following words:
"But the people as a whole retain their
interest in free speech by radio and their
collective right to have the medium function
consistently with the ends and purposes of the
First Amendment. It is the right of viewers
and listeners, not the right of the
broadcasters, which is paramount".
41.The author concludes by pointing out that the cases from
a variety of jurisdictions show that the broadcasters
programme freedom when exercised within the constraints
imposed by the regulatory authority, has priority over the
rights claimed by viewers to see a particular programme or
to retain a particular series in the schedule. On the other
hand, the interests of viewers and listeners justify the
imposition of programme standards which would not be
countenanced for the press or publishing. It is recognised
by the constitutional courts of European countries that
viewers and listeners have interests, and they should be
taken into account in the interpretation’ of broadcasting
freedom. But the balancing of the rights of the
broadcasters and viewers is done by regulatory authority.
Courts are understandably reluctant to contemplate the
interference with administrative discretion which would
result from their recognition of individual rights.
42.Dealing with the right to access to broadcasting, thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 109
author points out that the theoretical argument in this
connection is that freedom of speech means freedom to
communicate effectively to a mass audience and nowadays that
entails access to the mass media. The rights to access
provide some compensation for the expropriation by the
public monopoly of the freedom to broadcast. In the absence
of a justification for that monopoly, there would be a right
to broadcast in the same way that everyone has a right to
say or write what he likes in his own home. This would
justify the recognition of access to both public and private
channels. The -author states that these arguments are
unacceptable. Freedom of speech does not entail any right
to communicate effectively in the sense that a citizen can
call upon the State to provide him with the most effective
means for the purpose. He points out that no legal system
provides its citizens with the means and opportunities to
address the Public in the way each considers most appropriate. Moreover, to grant everyone a right to use an
access channel, even if available all the time, would be to
give every adult a worthless right to use it for a second a
year. Limited access rights, enjoyed only by important
political and social groups may be more valuable. But even
their recognition would involve some interference with the
editorial freedom of channel controllers and programme
schedulers and it may be more difficult as a Consequence to
achieve a balanced range or programmes. Further, a channel
might find it hard to create any clear identity for
148
itself, if it had to devote a substantial amount of time to
relaying the programmes made by pressure groups. There are
also practical objections to access rights. It may be very
difficult to decide, for example, which groups are to be
given access, and when and how often such programmes are to
be shown. There is a danger that some groups will be
unduly privileged. These points weigh particularly heavily
against the recognition of constitutional rights, for courts
are not competent to formulate them with any precision.
Dealing with the constitutional rights of access to the
broadcasting media, the author concludes that individuals
and groups do not have constitutional rights of access to
the broadcasting media. Access rights can only be framed
effectively by legislature or by specialist administrative
agencies. It does not mean that statutory or other access
rights do not have a constitutional dimension. The courts
may lay down that some provisions should be made for access
as a matter of constitutional policy. This, however, does
not mean that there are individual constitutional rights to
access.
43. In this connection, the author also points out that the
development of cable poses new access problems. Operator of
the cable may himself have rights of free speech which would
be infringed by a requirement to honour access claims. The
scarcity and economic arguments which are employed to
justify broadcasting regulation and, therefore, access
provision, may be less applicable in the context of cable.
44. We may now summarise the law on the freedom of speech
and expression under Article 19 [1] (a) as restricted by
Article 19 [2]. The freedom of speech and expression
includes right to acquire information and to disseminate it.
Freedom of speech and expression is necessary, for self
expression which is an important means of free conscience
and self fulfillment. It enables people to contribute to
debates of social and moral issues. It is the best way to
find a truest model of anything, since it is only through
it, that the widest possible range of ideas can circulate.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 109
It is the only vehicle of political discourse so essential
to democracy. Equally important is the role it plays in
facilitating artistic and scholarly endeavours of all sorts.
The right to communicate, therefore, includes right to
communicate through any media that is available whether
print or electronic or audio-visual such as advertisement,
movie, article, speech etc. That is why freedom of speech
and expression includes freedom of the press. The freedom
of the press in terms includes right to circulate and also
to determine the volume of such circulation. This freedom
includes the freedom to communicate or circulate one’s
opinion without interference to as large a population in the
country as well as abroad as impossible to reach.
45. This fundamental right can be limited only by reasonable
restrictions under a law made for purpose mentioned in
Article 19 [2] of the Constitution.
46. The burden is on the authority to justify the
restrictions. Public order is not the same thing as public
safety and hence no restrictions can be placed on the right
to freedom of speech and expression on the ground that
public safety is endangered. Unlike in the American
Constitution, limitations on fundamental rights are specifically spelt out under Article 19 [2] of our Constitution.
Hence no restrictions can
149
be placed on the right to freedom of speech and expression
on grounds other than those specified under Article 19 [2].
47. What distinguishes the electronic media like they
television from the print media or other media is that it
has both audio and visual appeal and has a more pervasive
presence. It has a greater impact on the minds of the
viewers and is also more readily accessible to all including
children at home. Unlike the print media, however, there is
a built-in limitation on the use of electronic media because
the airwaves are a public property and hence are owned or
controlled by the Government or a central national authority
or they are not available on account of the scarcity, costs
and competition.
48. The next question to be answered in this connection is
whether there can be a monopoly in broadcasting/telecasting.
Broadcasting is a means of communication and, therefore, a
medium of speech and expression. Hence in a democratic
polity, neither any private individual, institution or
Organisation nor any Government or Government Organisation
can claim exclusive right over It. Our Constitution also
forbids monopoly either in the print or electronic media.
The monopoly permitted by our Constitution is only in
respect of carrying on a trade, business, industry or
service under Article 19 [6] to subserve the interests of
the general public. However, the monopoly in broadcasting
and telecasting is often claimed by the Government to
utilise the public resources in the form of the limited
frequencies available for the benefit of the society at
large. It is Justified by the Government to prevent the
concentration of the frequencies in the hands of the rich
few who can information to suit their interests and thus in
fact to control and manipulate public opinion in effect
smothering the right to freedom of speech and expression and
freedom of information of others. The claim to monopoly
made on this ground may, however, lose all its raison d’etre
if either any section of the society is unreasonably denied
an access to broadcasting or the Governmental agency claims
exclusive right to prepare and relay programmes. The ground
is further not available when those claiming an access
either do not make a demand on the limited frequencieshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 109
controlled by the Government or claim the frequency which is
not utilised and is available for transmission. The
Government sometimes claims monopoly also on the ground that
having regard to all pervasive presence and impact of the
electronic media, it may be utilised for purposes not
permitted by law and the damage done by private broadcasters
may be irreparable. There is much to be said in favour of
this view and it is for this reason that the regulatory
provisions including those for granting licences to private
broadcasting where it is permitted, are enacted. On the
other hand, if the Government is vested with an unbridled
discretion to grant or refuse to grant the license or access
to the media, the reason for creating monopoly will lose its
validity. For then it is the government which will be
enabled to effectively suppress the freedom of speech and
expression instead of protecting it and utilising the
licensing power strictly for the purposes for which it is
conferred. It is for this reason that in most of the
democratic countries an independent autonomous broadcasting
authority is created to control all aspects of the operation
of the electronic media. Such authority is represen-
150
tative of all sections of the society and is free from
control of the political and administrative executive of the
State.
49. In this country, unlike in the United States and some
European countries, there has been a monopoly of
broadcasting/telecasting in the Government. The Indian
Telegraph Act, 1885 [hereinafter referred to as the
"Telegraph Act"] creates this monopoly and vests the power
of regulating and licensing broadcasting in the Government.
Further, the Cinematograph Act, 1952 and the Rules made
thereunder empower the Government to pre-censor films.
However, the power given to the Government to license and to
pre-censor under the respective legislations has to be read
in the context of Article 19 [2] of the Constitution which
sets the parameters of reasonable restrictions which can be
placed on the right to freedom of speech and expression.
Needless to emphasise that the power to pre-censor films and
to grant licences for access to telecasting, has to be
exercised in conformity with the provisions of Article 19
[2]. It is in this context that we have to examine the
provisions of Section 4 [1] of the Telegraph Act and the
action of the MIB/DD in refusing access to telecast the
cricket matches in the present case.
50. The relevant Section 4 of the Telegraph Act reads as
follows:
"4.(1) Within India the Central Government
shall have the exclusive privilege of
establishing, maintaining and working tele-
graphs:
Provided that the Central Government may grant
a licence, on such conditions and in
consideration of such payments as it thinks
fit, to any person to establish, maintain or
work a telegraph within any part of India
Provided further that the Central Government
may, by rules made under this Act and
published in the Official Gazette, permit,
subject to such restrictions and conditions as
it thinks fit, the establishment, maintenance
and working -
(a) of wireless telegraphs on ships within
India territorial waters and on aircraft
within or above India or Indian territorialhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 109
waters and
(b) of telegraphs other than wireless
telegraph within any part of India.
(2) The Central Government may, by no-
tification in the Official Gazette, delegate
to the telegraph authority all or any of its
powers wider the first proviso to sub-section
(1).
The exercise by the telegraph authority of any
power so delegated shall be subject to such
restrictions and conditions the Central
Government may, by the notification, think fit
to impose."
51. Section 3 (1) of the Act defines
’telegraph’ as under:
"3. (1) "telegraph" means any appliance,
instrument, material or apparatus used or
capable of use for transmission or reception
of signs, signals, writing, images and sounds
or intelligence of any nature by wire, visual
or other electromagnetic emissions, Radio
waves Hertzian waves, galvanic, electric or
magnetic means.
Explanation.- "Radio waves" or "Hertzian
waves" means electromagnetic waves of
frequencies lower than 3,000 giga-cycles per
second propagated in
151
space without artificial guide."
52. It Is clear from a reading of the provisions of Sections
4 [1] and 3 [1] together that the Central Government has the
exclusive privilege of establishing, maintaining and working
appliances, instruments, material or apparatus used or
capable of use for transmission or reception of signs,
signals, images and sounds or intelligence of any nature by
wire, visual or other electromagnetic emissions, Radio wayes
or Hertzian waves, galvanic, electric or magnetic means.
Since in the present case the controversy centres round the
use of airwaves or hertzian waves [hereinafter will be
called as "electro-magnetic waves"], as is made clear by
Explanation to section 3(1), the Central Government can have
monopoly over the use of the electromagnetic waves only of
frequencies lower than 3000 giga-cycles per second which are
propagated in space with or without artificial guide. In
other words, if the electromagnetic waves of frequencies of
3000 or more giga-cycles per second are propagated in space
with or without artificial guide, or if the electro-magnetic
waves of frequencies of less than 3000 give-cycles per
second are propagated with an artificial guide, the Central
Government cannot claim an exclusive right to use them or
deny its user by others. Since no arguments were advanced
on this subject after the closure of the arguments and
pending the decision, we had directed the parties to give
their written submissions on the point. The submissions
sent by them disclosed a wide conflict which would have
necessitated further oral arguments. Since we are of the
view that the present matter can be decided without going
into the controversy on the subject, we keep the point open
for decision in an appropriate case. We will presume that
in the present case the dispute is with regard to the use of
electromagnetic waves of frequencies lower than 3000 gigacycles per second which are propagated in space without
artificial guide. 53. The first proviso to Section 4 (1)
states that the Central Government may grant licence on such
conditions and in consideration of such payment as it thinkshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 109
fit, to any person, to establish, maintain or work a
telegraph within any part of India. We are not concerned
here with the permission to establish or maintain a
telegraph because in the present case the permission is
sought only for operating a telegraph and that too for a
limited time and for a limited and specified purpose. The
purpose again is non-commercial. It is to relay the
specific number of cricket matches. It is only incidentally
that the CAB will earn some revenue by selling its right to
relay the matches organised by it. The CAB is obviously not
a business or a commercial organisation nor can it be said
that it is organising matches for earning profits as a
business proposition. As will be pointed out later, it is a
sporting Organisation devoted to the cause of cricket and
has been organising cricket matches both of internal and
international cricket teams for the benefit of the sport,
the cricketers, the sportsmen present and prospective and of
the viewers of the matches. The restrictions and conditions
that the Central Government is authorised to place under S.
4 [1] while permitting non-wireless telegraphing can, as
stated earlier, only be those which are warranted by the
purposes mentioned in Article 19 [2] and none else. It is
not and cannot be the case of the Government that by
granting the permission in question, the sovereignty and
integrity of India, the security of the State,
152
friendly relations with foreign States, public order,
decency or morality or either of them will be in jeopardy or
that the permission will lead to the contempt of court,
defamation or incitement to an offence. On the other hand,
the arguments advanced are specious and with them we will
deal a little later.
54. It is then necessary to understand the nature of the
respondent Organisation, namely, CAB. It cannot be disputed
that the BCCI is a non-profit making Organisation which
controls officially organised game of cricket in India.
Similarly, Cricket Association of Bengal (CAB) is also nonprofit making Organisation which controls officially
organised game of cricket in the State of West Bengal. The
CAB is one of the Founder Members of BCCI. Office bearers
and Members of the Working Committees of both BCCI and CAB
are all citizens of India. The primary object of both the
organisations, amongst others, is to promote the game of
cricket, to foster the spirit of sportsmanship and the
ideals of cricket, and to impart education through the media
of cricket, and for achieving the said objects, to organise
and stage tournaments and matches either with the members of
International Cricket Council (ICC) or other organisations.
According to CAB, BCCI is perhaps the only sportsorganisation in India which cams foreign exchange and is
neither controlled by any Governmental agency nor receives
any financial assistance or grants, of whatsoever nature.
55. It cannot be disputed further that to arrange any
international cricket tournament or series. it is necessary
and a condition-precedent, to pay to the participating
member countries or teams, a minimum guaranteed amount in
foreign exchange and to bear expenses incurred for
travelling, boarding, lodging and other daily expenses for
the participating cricketeers and the concerned accompanying
visiting officials. A huge amount of expenses has also to
be incurred for organising the matches. In addition, both
BCCI and CAB annually incur large amount of expenses for
giving subsidies and grants to its members to maintain, develop and upgrade the infrastructure, to coach and train
players and umpires, and to pay to them when the series andhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 109
matches are played.
56.Against this background, we may now examine the questions
of law raised by the parties. The contention of the Ministry of Information and Broadcasting (MIB) is that there is
a difference between the implications of the right conferred
under Article 19 [1] (a) upon [i] the broadcaster i.e. the
person operating the media, [ii] the person desiring access
to the media to project his views including the organiser of
an event, [iii] the viewer and [iv] a person seeking
uplinking of frequencies so as to telecast signals generated
in India to other countries. The contention of CAB that
denial of a license to telecast through a media of its
choice, based [according to NM] upon the commercial
interests, infringes viewers’ right under Article 19 [1] (a)
is untenable. It is further contended that the commercial
interests of the organizer are not protected by Article 19
[1] (a). However, the contention of the CAB results
indirectly in such protection being sought by resort to the
following steps of reasoning : [a] the, Board has a right to
commercially exploit the event to the maximum, [b] the
viewer has a right to access to the event through
153
the television. Hence the Board has the right to telecast
through an appropriate channel and also the right to insist,
that a private agency including a foreign agency, should be
allowed all the sanctions and permissions as may be
necessary therefor.
57.According to NUB the aforesaid contention is untenable
because even if it is assumed that entertainment is a part
of free speech, the analogy of the right of the press under
Article 19 [1] (a) vis-a-vis the right under Article 19 [1]
(g), cannot be extended to the right of sports associations.
The basic premise underlying the recognition of the rights
of the press under Article 19 [1] (a) is that the economic
strength is vitally necessary to ensure independence of the
press, and thus even the ’business’ elements of a newspaper
have ’to some extent a ’free speech’ protection. In other
words the commercial element of the press exists to subserve
the basic object of the press, namely, free dissemination of
news and views which enjoys the protection of free speech.
However, free speech element in telecast of sports is
incidental. According to the MIB, the primary object of the
telecast by the CAB is to raise funds and hence the activities are essentially of trade. The fact that the
profits are deployed for promotion of sports is immaterial
for the purpose.
58. It is further urged that a broadcaster does not have a
right as such to access to the airwaves without a license
either for the purposes of telecast or for the purposes of
uplinking. Secondly, there is no general right to a license
to use airwaves which being a scarce resource, have to be
used in a manner that the interests of the largest number
are best served. The paramount interest is that of the
viewers. The grant of a license does not confer any
special right inasmuch as the refusal of a license does not
result in the denial of a right to free speech. Lastly, the
nature of the electronic media is such that it necessarily
involves the marshaling of the resources for the largest
public good. The state monopoly created as a device, to use
the resource is not per se violative of the right of free
speech as long as the paramount interests of the viewers are
subserved and access to the media is governed by the
fairness doctrine. According to the MIB, the width of the
rights under Article 19 [1] (a) has never been considered to
be wider than that conferred by the First Amendment to thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 109
U.S. Constitution. It is also urged that the licensing of
frequencies and consequent regulation of telecast/broadcast
would not be a matter covered by Article 19 [2]. The-right
to telecast/broadcast has certain inherent limitations
imposed by nature, whereas Article 19(2) applies to
restrictions imposed by the State. The object of licensing
is not to cast restrictions on the expression of ideas, but
to regulate and Marshall scarce resources to ensure their
optimum enjoyment by all including those who are not
affluent enough to dominate the media.
59.It is next urged that the rights of an organiser to use
airwaves as a medium to telecast and thereby propagate his
views, are distinct from his right to commercially exploit
the event. Although it is conceded that an organiser cannot
be denied access on impermissible grounds, it is urged that
he cannot further claim a right to use an agency of his
choice as a part of his right of free speech. In any event
no person can claim to exercise his right under Article 19
[1] (a) in a manner which makes it a device for a noncitizen
154
to assert rights which are denied by the Constitution.
According to MIB, it is the case of the BCCI that to promote
its commercial interest, it is entitled to demand that the
Government grants all the necessary licenses and permissions
to any foreign agency of its choice and a refusal to do so
would violate Article 19 [1] (a). According to MIB, this is
an indirect method to seek protection of Article 19 [1] (a)
to the non-citizens.
60. It is then contended that a free speech right of a
viewer has been recognised as that having a paramount importance by the US Supreme Court and this view is all the
more significant in a country like ours. While accepting
that the electronic media is undoubtedly the most powerful
media of communication both from the perspective of its
reach as well as its impact, transcending all barriers including that of illiteracy, it is contended that it is very
cost-intensive. Unless, therefore, the rights of the
viewers are given primacy, it will in practice result in the
affluent having the sole right to air their views completely
eroding the right of the viewers. The right of viewer can
only be safeguarded by the regulatory agency by controlling
the frequencies of broadcast as it is otherwise impossible
for viewers to exercise their right to free speech qua the
electronic media in any meaningful way.
61.Lastly, dealing with the contention raised on behalf of
the CAB and BCCI that the monopoly conferred upon DD is
violative of Article 19 [1] (a), while objecting to the
contention on the ground that the issue does not arise in
the present proceedings and is not raised in the pleadings,
it is submitted on behalf of NM that the principal
contentions of the CAB/BCCI are that they are entitled to
market their right to telecast event at the highest possible
value it may command and if the DD is unwilling to pay as
much as the highest bidder, the CAB/BCCI has the right not
only to market the event but to demand as of right, all the
necessary licences and permissions for the agency including
foreign agency which has purchased its rights. According to
MIB these contentions do not raise any free-speech issues,
but impinge purely on the right to trade. As far as Article
19 [1] (g) is concerned, the validity of the monopoly in
favour of the Government is beyond question. Secondly, in
the present case, the DD did not refuse to telecast the
event per se. It is then submitted that the CAB/BCCI are
not telecasters. They arc only organisers of the eventshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 109
sought to be telecast and when the agency like DD which has
access to the largest number of viewers agrees to telecast
the events, their right as well as the viewers’ right under
Article 19 [1] (a) is satisfied. No organiser, it is
contended, can insist that his event be telecast on terms
dictated by him and refusal to agree to his term
constitutes, breach of his right under Article 19 [1] (a).
If it is accepted that the Government has not only the,
right but the duty to regulate the distribution of
frequencies, then the only way it can be done is by creating
a monopoly. A mere creation of the monopoly-agency to telecast does not per se violate Article 19 [1] (a) as long as
the access is not denied to the media either absolutely or
by imposition of terms which are unreasonable. Article 19
[1] (a) proscribes monopoly in ideas and as long as this is
not done, the mere -fact that the access to the media is
through the Government-controlled agency, is not per se
violative of Article 19 [1] (a).
155
It is further urged that no material has been placed before
the Court to show that the functioning of the DD is such as
to deny generally, an access to the media and the control
exercised by the Government is in substance over the content
on the grounds other than those specified in Article 19 [2]
or a general permission to all who seek frequencies to
telecast, would better subserve the principle underlying
Article 19 [1] (a) in the socioeconomic scenario of this
country and will not result in passing the control of the
media from the Government to private agencies affluent
enough to buy access.
62. As against these contentions of the MIB, it is urged on
behalf of CAB and BCCI as follows:
The right to organise a sports event inheres in the entity
to which the right belongs and that entity in this case is
the BCCI and its members which include the CAB. The right
to produce event includes the right to deal with such event
in all manner and mode which the entity chooses. This
includes the right to telecast or not to telecast the event,
and by or through whom, and on what terms and conditions.
No other entity, not even a department of the Government can
coerce or influence this decision or obstruct the same
except on reasonable grounds mentioned under Article 19 [2]
of the Constitution. In the event the entity chooses to
televise its own events, the terms and conditions for
televising such events are to be negotiated by it with any
party with whom it wishes to negotiate. There is no law,
bye-law, rule or regulation to regulate the conduct of the
BCCI or CAB in this behalf. In the event. BCCI chooses to
enter into an agreement with an agency having necessary
expertise and infrastructure to produce signals, and
transmit and televise the event of the quality that BCCI/CAB
desires, the terms and conditions to be negotiated with such
an entity, are the exclusive privilege of BCCI/CAB. No
department of the Government and least of all, the MIB or DD
is concerned with the same and can deny the BCCI or CAB
same, the benefit of such right or claim, much less can the
MIB or DD can insist that such negotiation and finalisation
only be done with it or not otherwise.
63. In the event the BCCI or CAB wishes to have the event
televised outside India, What is required is that the
required cameras and equipments in the field send signals to
the earth station which in turn transmits the same to the
appointed satellite. From the satellite, the picture is
beamed back which can be viewed live by any person who has a
TV set and has appropriate access to receive footprintshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 109
within the beaming zone. In such case DD or the Ministry of
Communications is not to provide any assistance either in
the form of equipments or personnel or for that matter, in
granting uplinking facility for televising the event.
64. It is further that the right to disseminate information
is a part of the fundamental right to freedom of expression.
BCCI/CAB have the fundamental right to televise the game of
cricket organised and conducted by them for the benefit of
public at large and in particular citizens of India who are
either interested in cricket or desire to be educated and/or
entertained. The said right is subject only to the
regulations and restrictions as provided by Article 19(2) of
the Constitution.
65. 65. At no other stage either the DD or
156
MIB stated that reasonable restrictions as enumerated in
Article 19 [2] arc being sought to be imposed apart from the
fact that such plea could not have been taken by them in the
case of telecasting sports events like cricket matches. It
is urged that the sole ground on which DD/MIB is seeking to
obstruct and/or refuse the said fundamental right is that
the DD has the exclusive privilege and monopoly to broadcast
such an event and that unless the event is produced,
transmitted and telecast either by DD itself or in
collaboration with it on its own terms and conditions and
after taking signal from it on the terms and conditions it
may impose, the event cannot be permitted to be produced,
transmitted and telecast at all by anybody else.
66. It is also urged that there is no exclusive privilege
or monopoly in relation to production, transmission or telecasting and such an exclusivity or monopoly, if claimed , is
violative of Article 19 [1] (a).
67 The BCCI and CAB have a right under Article 19 [1] (a)
to produce, transmit, telecast and broadcast their event
directly or through its agent. The right to circulate
information is a part of the right guaranteed under Article
19 [1] (a). Even otherwise, the viewers and persons interested in sports by way of education, information, record and
entertainment have a right to such information, knowledge
and entertainment. The content of the right under Article
19 [1] (a) reaches out to protect the information of the
viewers also. In the present case, there is a right of the
viewers and also the right of the producer to telecast the
event and in view of these two rights, there is an
obligation on the part of the Department of Telecommunication to allow the telecasting of the event.
68. It is then contended that the grant of a licence under
section 4 of the Act is a regulatory measure and does not
entitle MIB either to deny a license to BCCI/ CAB for the
purposes of production, transmission and telecasting sports
events or to impose any condition unrelated to Article 19
[2]. If such denial or imposition is made, it would amount
to a prohibition. Hence the NM is obliged and dutybound in
law to grant licence against payment of fees related to and
calculated on the basis of user of time only, as has been
standardized and not otherwise. Any other method applied by
MIB/DD would be violative of Article 19 [1] (a). The grant
of license under section 4 of the Act has thus to be
harmoniously read with the right of the citizen under
Article 19 [1] (a). The Constitution does not visualize any
monopoly in Article 19 [1] (a). Hence DD cannot claim the
same nor can the commercial interest of DD or claim of
exclusivity by it of generation of signals be a ground for
declining permission under section 4 of the Act. Hence the
following restrictions sought to be imposed fall outside thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 109
ambit of Article 19(2) and are unconstitutional. The
restrictions are:
(a) That unless BCCI or CAB televises the
matches in collaboration with DD, a license
shall not be granted.
(b) The DD alone will be the host broad-
caster of the signals and BCCI/CAB or its
agency must take the signal from DD alone and
(c) Unless the BCCI or CAB accepts
157
the terms and conditions imposed by DD, the
production of signal and transmission and
telecast thereof shall not be permitted.
69. It is further contended that there is no monopoly in
relation to what viewer must today view and the American
decisions relied upon on behalf of MIB have no bearing on
the present state of affairs. Satellite can beam directly
on to television sets through dish antenna, all programmes
whose footprints are receivable in the country. Further,
any one can record a programme in India and then telecast it
by sending the cassette out as is being done in the case of
several private TV channels. Various foreign news organizations such as the BBC and the CNN record directly Indian
events and then transmit their own signals after a while to
be telecast by their organizations.
70. Further, the non-availability of channel is of no
consequence in the present days of technological
development. Any person intending to telecast/broadcast an
event can do so directly even without routing signal through
the channels of DD or MIB. What is required to ensure is
that the secured channel are not interfered with or
overlapped. On account of the availability of innumerable
satellites in the Geo-Stationary Orbit of the Hemisphere,
the signals can directly be uplinked through any of the
available transponders of satellite whose footprints can be
received back through appropriate electronic device. As a
matter of fact, beaming zone of only 3 satellites parked
3000 Kms. above the surface of the earth can cover the
entire Hemisphere. Moreover, due to technological
developments, frequency is becoming thinner and thinner and
as a result, availability of frequencies has increased
enormously and at present there are millions of frequencies
available. In order to ensure that none of the footprints
of any satellite overlaps the footprint of other satellite,
each and every satellite is parked at a different degree and
angle. Hence, there is no resource crunch or in-built
restriction on the availability of electronic media, as contended by MIB. In this connection it is also pointed out
that there is a difference in the right spelt out by Article
19 [1] (a) of our Constitution and that spelt out by the
First Amendment of the American Constitution.
71. It is also contended that in no other country the
right to televise or broadcast is in the exclusive domain of
any particular body. In this connection, a reference is
made to various instances in other countries where the host
broadcaster has been other than the domestic network, which
instances are not controverted. It is also urged that there
is no policy of the Government of India as urged on behalf
of the MIB that telecasting of sporting events would be
within the exclusive domain and purview of DD/MIB who alone
would market their rights to other authorities in whole or
in part. It is pointed out that the extract from the
minutes of the meeting of the Committee of Secretaries held
on 12th November, 1993 relied upon by the MIB for the
purpose is not a proof of such policy. The said minutes arehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 109
’executive decision’ of a few Secretaries of the various
departments of the Government.
72.It is also urged that even public interest or interest of
general public cannot be a ground for refusal or for the
imposition of restrictions or for claiming exclusivity in
any manner whatsoever.
158
Such restriction, if imposed will be violative of Article 19
[1] (a). To suggest that power to grant a license shall not
be exercised under any circumstances because of the policy
of the Government, is arbitrary inasmuch as the power
conferred is not being used for the purpose for which it has
been conferred.
73.It is then contended that both BCCI and CAB are nonprofit making organizations and their sole object is to
promote the game of cricket in this country and for that
purpose not only proper and adequate infrastructures are
required to be erected, built and maintained, but also huge
expenses have to be incurred to improve the game which
includes, amongst others, grant of subsidies and grants to
the Member Associations, upgradation of infrastructure,
training of cricketeers from school level, payments to the
cricketeers, insurance and benevolent funds for the
cricketeers, training of umpires, payments of foreign
participants, including guarantee money etc. The quantum of
amount to be spent for all these purposes has increased
during the course of time. These expenses are met from the
amounts earned by the BCCI and CAB since they have no other
continuous source of income. The earnings of BCCI and CAB
are basically from arranging various tournaments, instadia
advertisements and licence fee for permitting telecast and
censorship. At least 70 per cent of the income earned
through the advertisements and generated by the TV network
while telecasting of the matches, is paid to the organizer
apart from the minimum guaranteed money as is apparent from
the various agreements entered by and between BCCI/CAB as
well as by DD with. other networks. The DD in effect
desires to snatch away the right of telecast for its own
commercial interest through advertisement, and at the same
time also demand money from the organizers as and by way of
production fee.
74.Merely because an organization may cam profit from an
activity whose character is predominantly covered under
Article 19 [1] (a), it would not convert the activity into
one involving Article 19 [1] (g). The test of predominant
character of the activity has to be applied. It has also to
be ascertained as to who is the person who is utilizing the
activity. If a businessman were to put in an advertisement
for simpliciter commercial activity, it may render the
activity, the one, covered by Article 19 [1] (g). But even
newspapers or a film telecast or sports event telecast will
be protected by Article 19 [1] (a) and will not become an
activity under Article 19 [1] (g) merely because it earns
money from advertisements in the process. Similarly, if the
cricket match is telecast and profit is earned by the
licensing of telecasting right and receipts from
advertisements, it will be an essential element for
utilization and fulfillment of its object. The said object
cannot be achieved without such revenue.
75.Rebutting the argument that the Organisation of sports is
an industry and, therefore, monopoly under Article 19 [6] is
permissible, it is pointed out that even if, in matters
relating to business and profession, the State can create
monopoly under Article 19 [6], it can still not infringe
Article 19 [1] (a). While the State may monopolise thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 109
textile industry, it cannot prohibit the publication of
books and articles on textiles.
76.It is also contended that the exercise of right claimed
in the present case is
159
by BCCI/CAB and its office bearers who are citizens of
India. Merely because foreign equipment and technical and
personnel are used as collaborators to exercise the said
right more effectively, it does not dilute the content of
Article 19 [1] (a) nor does it become an exercise of right
by a non-citizens. In this connection, it is emphasised
that the DD is also using Worldtel, a foreign agency. Most
of the newspapers in India are printed on machines imported
from abroad. A newspaper may also have a foreigner as its
manager. However, that does not take away the right of the
newspaper under Article 19 [1] (a). They are only instances
of technical collaboration. Apart from it, every citizen
has a right to information as the same cannot be taken away
on grounds urged by the NEB.
77.It will be apparent from the contentions advanced on
behalf of MIB that their main thrust is that the right
claimed by the BCCI/CAB is not the right of freedom of
speech under Article 19 [1] (a), but a commercial right or
the right to trade under Article 19 [1] (g). The contention
is based mainly on two grounds viz., there is no free speech
element in the telecast of sports and secondly, the primary
object of the BCCI/CAB in seeking to telecast the cricket
matches is not to educate and entertain the viewer but to
make money.
78.It can hardly be denied that sport is an expression of
self In an athletic Nor individual event, the individual
expresses himself through his individual feat. In a team
event such as cricket, football, hockey etc., there is both
individual and collective expression. It may be true that
what is protected by Article 19 [1] (a) is an expression of
thought and feeling and not of the physical or intellectual
prowess or skill. It is also true that a person desiring to
telecast sports events when he is not himself a participant
in the game, does not seek to exercise his right of self
expression. However, the right to freedom of speech and
expression also includes the right to educate, to inform and
to entertain and also the right to be educated, informed and
entertained. The former is the right of the telecaster and
the latter that of the viewers. The right to telecast
sporting event will therefore also include the right to educate and inform the present and the prospective sportsmen
interested in the particular game and also to inform and
entertain the lovers of the game. Hence, when a telecaster
desires to telecast a sporting event, it is incorrect to say
that the free speech element is absent from his right. The
degree of the element will depend upon the character of the
telecaster who claims the right. An organiser such as the
BCCI or CAB in the present case which are indisputably
devoted to the promotion of the game of cricket, cannot be
place in the same scale as the business organisations whose
only intention is to make as large a profit as can be made
by telecasting the game. Whereas it can be said that there
is hardly any free speech element in the right to telecast
when it is asserted by the latter, it will be a warped and
cussed view to take when the former claim the same right,
and contend that in claiming the right to telecast the
cricket matches organised by them, they are asserting the
right to make business out of it. The sporting
organisations such as BCCI/ CAB which are interested in
promoting the sport or sports are under an obligation tohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 109
organise the sports events and can legitimately be accused
of failing in their
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duty to do so. The promotion of Sports also includes its
popularization through all legitimate means. For this
purpose, they are duty bound to select the best means and
methods to reach the maximum number of listeners and
viewers. Since at present, radio and TV are the most
efficacious methods, thanks to the technological
development, the sports organisations like BCCI/CAB will be
neglecting their duty in not exploring the said media and in
not employing the best means available to them to popularise
the game. That while pursuing their objective of
popularising the sports by selecting the best available
means of doing so, they incidentally earn some revenue, will
not convert either them into commercial organisations or the
right claimed by them to explore the said means, into a
commercial right or interest. It must further be remembered
that sporting organisations such as BCCI/CAB in the present
case, have not been established only to organise the sports
events or to broadcast or telecast them. The organisation
of sporting events is only a part of their various objects,
as pointed out earlier and even when they organise the
events, they are primarily to educate the sportsmen, to
promote and popularise the sports and also to inform and
entertain the viewers. The Organisation of such events
involves huge costs. Whatever surplus is left after
defraying all the expenses, is ploughed back by them in the
Organisation itself It will be taking a deliberately distorted view of the right claimed by such organisations to
telecast the sporting event to call it an assertion of a
commercial right. Yet the MIB has chosen to advance such
contention which can only be described as most unfortunate.
It is needless to state that we are, in the circumstances,
unable to accept the ill-advised argument. It does no
credit to the Ministry or to the Government as a whole to
denigrate the sporting organisations such as BCCI/CAB by
placing them on par with business organisations sponsoring
sporting events for profit and the access claimed by them to
telecasting as assertion of commercial interest.
79.The second contention of NM is based upon the
propositions laid down by the US Supreme Court, viz., there
are inherent limitations imposed on the right to
telecast/broadcast as there is scarcity of resources, i.e.
of frequencies, and therefore the need to use them in the
interest of the largest number. There is also a pervasive
presence of electronic media such as TV. It has a greater
impact on the minds of the people of all ages and strata of
the society necessitating the prerequisite of licensing of
the programmes. It is also contended on that account that
the licensing of frequencies and consequent regulation of
telecasting/broadcasting would not be a matter governed by
Article 19 [2]. Whereas Article 19 [2] applies to restrictions imposed by the State, the inherent limitations on the
right to telecast/broadcast are imposed by nature.
80.In the first instance, it must be remembered that all the
decisions of the US Supreme Court relied upon in support of
this contention, are on the right of the private
broadcasters to establish their own broadcasting stations by
claiming a share in or access to the airwaves or frequencies. In the United States, there is no Central Governmentowned or controlled broadcasting centre. There is only a
Federal Commission to regulate broadcasting stations which
are all owned by private broadcasters. Secondly, the
American Con-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 109
161
stitution does not explicitly state the restrictions on the
right of freedom of speech and expression as our
Constitution does. Hence, the decisions in question have
done no more than impliedly reading such restrictions. The
decisions of the U.S. Supreme Court, therefore, in the
context of the right claimed by the private broadcasters are
irrelevant for our present purpose. In the present case,
what is claimed is a right to an access to telecasting
specific events for a limited duration and during limited
hours of the day. There is no demand for owning or
controlling a frequency. Secondly, unlike in the cases in
the US which came for consideration before the US Supreme
Court, the right to share in the frequency is not claimed
without a license. Thirdly, the right to use a frequency
for a limited duration is not claimed by a business
Organisation to make profit and lastly and this is an
important aspect of the present case, to which no reply has
been given by the MIB, there is no claim to any frequency
owned and controlled by the Government. What is claimed is
a permission to uplink the signal created by the organiser
of the events to a foreign satellite.
81. There is no doubt that since the airwaves/frequencies
are a public property and are also limited, they have to
be used in the best interest of the society and this can be
done either by a central authority by establishing its own
broadcasting network or regulating the grant of licences to
other agencies, including the private agencies. What is
further, the electronic media is the most powerful media
both because of its audio-visual impact, and its widest
reach covering the section of the society where the print
media does not reach. The right to use the airwaves and the
content of the programmes therefore, needs regulation for
balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing
from the concentration of the right to broadcast/telecast in
the hands either of a central agency or of few private
affluent broadcasters. That is why the need to have a
central agency representative of all sections of the society
free from control both of the Government and the dominant
influential sections of the society. This is not disputed.
But to contend that on that account the restrictions to be
imposed on the right under Article 19 [1] (a) should be in
addition to those permissible under Article 19 [2] and
dictated by the use of public resources in the best
interests of the society at large, is to misconceive both
the content of the freedom of speech and expression and the
problems posed by the element of public property in, and the
alleged scarcity of, the frequencies as well as by the wider
reach of the media. If the right to freedom of speech and
expression includes the right to disseminate information to
as wide a section of the population as is possible, the
access which enables the right to be so exercised is also an
integral part of the said right. The wider range of
circulation of information or its greater impact cannot
restrict the content of the right nor can it justify its
denial. The virtues of the electronic media cannot become
its enemies. It may warrant a greater regulation over
licensing and control and vigilance on the content of the
programme telecast. However, this control can only be
exercised within the framework of Article 19 [2] and the
dictates of public interests. To plead for other grounds is
to plead for unconstitutional measures. It is further
difficult to appreciate such contention on the
162http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 109
part of the Government in this country when they have a
complete control over the frequencies and the content of the
programme to be telecast. They control the sole agency of
telecasting. They are also armed with the provisions of
Article 19 [2] and the powers of pre-censorship under the
Cinematograph Act and Rules. The only limitations on the
said right is, therefore, the limitation of resources and,
the need to use them for the benefit of all. When, however,
there are surplus or unlimited resources and the public
interests so demand or in any case do not prevent
telecasting, the validity of the argument based on
limitation of resources disappears. It is true that to own
a frequency for the purposes of broadcasting is a costly
affair and even when there are surplus or unlimited
frequencies, only the affluent few will own them and will be
in a position to use it to subserve their own interest by
manipulating news and views. That also poses a danger to
the freedom of speech and expression of the have-nots by
denying them the truthful information on all sides of an
issue which is so necessary to form a sound view on any
subject, That is why the doctrine of fairness which is
evolved in the U.S. in the context of the private
broadcasters licensed to share the limited frequencies with
the central agency like the FCC to regulate the programming.
But this phenomenon occurs even in the case of the print
media of all the countries. Hence the body like the Press
Council of India which is empowered to enforce, however
imperfectly, the right to reply. The print media further
enjoys as in our country, freedom from pre-censorship unlike
the electronic media.
82.As -stated earlier, we are not concerned in the present
case with the right of the private broadcasters, but only
with the limited right for telecasting particular cricket
matches for particular hours of the day and for a particular
period. It is not suggested that the said right is
objectionable on any of the grounds mentioned in Article 19
[2] or is against the proper use of the public resources.
The only objection taken against the refusal to grant the
said right is that of the limited resources. That objection
is completely misplaced in the present case since the claim
is not made on any of the frequencies owned, controlled and
utilised by the D.D. The right claimed is for uplinking the
signal generated by the BCCI/CAB to a satellite owned by
another agency. The objection, therefore, is devoid of any
merit and untenable in law. It also displays a deliberate
obdurate approach.
83.The third contention advanced on behalf of the MIB is
only an extended aspect of the fist contention. It is based
on the same distorted interpretation of the right claimed.
It proceeds on the footing that the BCCI/CAB is claiming a
commercial right to exploit the sporting event when they
assert that they have a right to telecast the event through
an agency of their choice. It is even contended on behalf
of the MIB that this amounts to a device for a non-citizen
to assert rights under Article 19 [1] .(a) which are not
available to him.
84.It is unnecessary to repeat what we have stated while
dealing with the first contention earlier, with regard to
the character of BCCI/CAB, the nature of and the purpose for
which the right to access to telecast is claimed by them.
As pointed out, it is not possible to hold that what the
BCCI/CAB are in the present cast claiming is a commercial
right to exploit the
163
event unless one takes a perverse view of the matter. Thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 109
extent of perversity is apparent from the contention raised
by them that to engage a foreign agency for the purpose is
to make it a device for a noncitizen to assert his rights
under Article 19 [1] (a). It cannot be denied that the
right to freedom of speech and expression under Article 19
[1] (a) includes the right to disseminate information by the
best possible method through an agency of one’s choice so
long as the engagement of such agency is not in
contravention of Article 19 [2] of the Constitution and does
not amount to improper or unwarranted use of the
frequencies. Hence the choice of BCCI/ CAB of a foreign
agency to telecast the matches, cannot be objected to.
There is no suggestion in the present case that the
engagement of the foreign agency by the BCCI/CAB is
violative of the provisions of Article 19 [2]. On the other
hand, the case of NUB, as pointed out earlier, is that the
BCCI/CAB want to engage the foreign agency to maximise its
revenue and hence they are not exercising their right under
Article 19 [1] (a) but their commercial right under Article
19 [1] (g). We have pointed out that that argument is not
factually correct and what in fact the BCCI/CAB is asserting
is a right under Article 19 [1] (a). While asserting the
said right, it is incidentally going to earn some revenue.
In the circumstances, it has the right to choose the best
method to earn the maximum revenue possible. In fact, it
can be accused of negligence and may be attributed
improper motives, if it fails to explore the most profitable
avenue of telecasting the event, when in any case, in
achieving the object of promoting and popularising the
sports, it has to endeavour to telecast the cricket matches.
The record shows that all applications were made and
purported to have been made to the various agencies on
behalf of CAB for the necessary licences and permissions.
All other Ministries and Departments understood them as such
and granted the necessary permissions and licences. Hence,
by granting such permission, the Government was not in fact
granting permission to the foreign agency to exercise its
right under Article 19 [1] (a). If, further, that was the
only objection in granting permission, a positive approach
on the part of the NM could have made it clear in the
permission granted that it was being given to CAB. In fact,
when all other Government Departments had no difficulty in
construing the application to that effect and granting the
necessary sanctions/permissions at their end, it is
difficult to understand the position taken by the MIB in
that behalf. One wishes that such a contention was not advanced.
85.The fourth contention is that, as held by the US Supreme
Court, the freedom of speech has to be viewed also as a
right of the viewers which has a paramount importance, and
the said View has significance in a country like ours. To
safeguard the rights of the viewers in this country, it is
necessary to regulate and restrict the right to access to
telecasting. There cannot be any dispute with this
proposition. We have in fact referred to this right of the
viewers in another context earlier. True democracy cannot
exist unless all citizens have a right to participate in
the affairs of the polity of the country. The right to
participate in the affairs of the country is meaningless
unless the citizens are well informed on all sides of the
issues, in respect of which they are called upon to express
their views. One-sided information, disinformation,
misinformation and non-information all
164
equally create an uninformed citizenry which makes democracyhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 109
a farce when medium of information is monopolised either by
a partisan central authority or by private individuals or
oligarchic organisations. This is particularly so in a
country like ours where about 65 per cent of the population
is illiterate and hardly 1-1/2 per cent of the population
has an access to the print media which is not subject to
precensorship. When, therefore, the electronic media is
controlled by one central agency or few private agencies of
the rich, there is a need to have a central agency, as
stated earlier, representing all sections of the society.
Hence to have a representative central agency to ensure the
viewers’ right to be informed adequately and truthfully is a
part of the right of the viewers under Article 19 [1] (a).
We are, however, unable to appreciate this contention in the
present context since the viewers’ rights are not at all
affected by the BCCI/CAB, by claiming a right to telecast
the cricket matches, On the other hand, the facts on record
show that their rights would very much be trampled if the
cricket matches are not telecast through the D.D., which has
the monopoly of the national telecasting network. Although,
there is no statistical data available [and this is not a
deficiency felt only in this arena], it cannot be denied
that a vast section of the people in this country is
interested in viewing the cricket matches. The game of
cricket is by far the most popular In all parts of the
country. This is evident from the over-flowing stadia at
the venues wherever the matches are played and they are
played all over the country. It will not be an exaggeration
to say that at least one in three persons, if not more, is
interested in viewing the cricket matches. Almost all
television sets are switched on to view the matches. Those
who do not have a T.V. set of their own, crowd around T.V.
sets of others when the matches are on. This is not to
mention the number of transistors and radios which are on
during the match-hours. In the face of these revealing
facts, it is difficult to understand why the present
contention with regard to the viewers’ right is raised in
this case when the grant of access to BCCI/CAB to telecast
cricket matches was in the interest of the viewers and would
have also contributed to promote their rights as well.
86.The last argument on behalf of the MIB is that since in
the present case, the DD has not refused to telecast the
event, its monopoly to telecast cannot be challenged and in
fact no such contention was raised by the BCCI/CAB. We are
afraid that this will not be a proper reading of the
contentions raised by BCCI/CAB in their pleadings both
before the High Court and this Court. Undisputed facts on
record show that the DD claimed exclusive right to create
host broadcasting signal and to telecast it on the terms and
conditions stipulated by it or not at all. MIB even refused
to grant uplinking facilities when the terrestrial signal
was being created by the CAB with their own apparatus, i.e.,
the apparatus of the agency which they had engaged and when
the use of any of the frequencies owned, controlled or
commanded by DD or the Government, was not involved. Since
BCCI/CAB were the organisers of the events, they had every
right to create terrestrial signals of their event and to
sell it to whomsoever they thought best so long as such
creation of the signal and the sale thereof was not
violative of any law made under Article 19 [2] and was not
an abuse of the frequencies which are a public property.
Neither DD nor any other agency could im-
165
pose their terms for creating signal or for telecasting them
unless it was sought through their frequencies. When the DDhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 109
refused to telecast cricket matches except on their terms,
the BCCI/CAB turned to another agency, in the present case a
foreign agency, for creating the terrestrial signal and
telecasting it through the frequencies belonging to that
agency. When the DD refused to telecast the matches, the
rights of the viewers to view the matches were in jeopardy.
Only the viewers in this country who could receive foreign
frequencies on their TV sets, could have viewed the said
matches. Hence it is not correct to say that the DD had not
refused to telecast the events. To insist on telecasting
events only on one’s unreasonable terms and conditions and
not otherwise when one has the monopoly of telecasting, is
nothing but refusal to telecast the same. The DD could not
do it except for reasons of non-availability of frequencies
or for grounds available under Article 19(2) of the
Constitution or for considerations of public interest involved in the use of the frequencies as public property.
The fact that the DD was prepared to telecast the events
only on its terms shows that the frequency was available.
Hence, scarcity of frequencies or public interests cannot be
pressed as grounds for refusing to telecast or denying
access to BCCl/CAB to telecasting. Nor can the DD plead
encroachment on the right of viewers as a ground since the
telecasting of events on the terms of the DD cannot alone be
said to safeguard the right of viewers in such a case and in
fact it was not so.
87.Coming to the facts of the present case, which have given
rise to the present proceedings, the version of MIB is as
follows:
On March 15, 1993, the CAB wrote a letter to the Director
General of Doordarshan that a Six-Nation International
Cricket Tournament will be held in November, 1993 as a part
of its Diamond Jubilee Celebrations and asked DD to send a
detailed offer for any of the two alternatives, namely, (i)
that DD would create ’Host Broadcaster Signal’ and also
undertake live telecast of all the matches in the tournament
or (ii) any other party may create the ’Host Broadcaster
Signal’ and DD would only purchase the rights to telecast in
India. CAB in particular emphasised that in either case,
the foreign T.V. rights would be with CAB. The CAB also
asked DD to indicate the royalty amount that would be paid
by the DD. On March 18, 1993 the Controller of Programmes
(Sports), DD, replied to the letter stating amongst other
things that during the meeting and during the telephonic
conversation, CAB’s President Dalmia had agreed to send them
in writing the amount that he expected as rights fee payable
to CAB exclusively for India, without the Star TV getting
it. On March 19, 1993, CAB informed DD that they would be
agreeable to DD creating the Host Broadcaster Signal and
also granting DD exclusive right for India without the Star
TV getting it and the CAB would charge DD US $800,000 (US
Dollars eight lakh] only] for the same. The CAB, however,
made it clear that they would reserve the right to sell/license the right world-wide, excluding India and Star TV.
The CAB also stated that DD would be under an obligation to
provide a picture and commentary subject to payment of DD’s
technical fees. On March 31, 1993, DD sent its bid as ’Host
Broadcaster’ for a sum of Rs. 1 crore stating inter alia,
that CAB should grant signals to it exclusively for India
with-
166
out the Star TV getting it. The DD also stated that they
would be in a position to create the ’Host Broadcaster
Signal’ and offer a live telecast of all the matches in the
tournament. Thereafter, on May 4, 1993, the DD by a faxhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 109
message reminded the President of CAB about its offer of
March 31, 1993. To that CAB replied on May 12, 1993 that as
the Committee of CAB had decided to sell/allot worldwide TV
rights to one party only, they would like to know whether DD
would be interested in the deal and, if so, to send their
offer for worldwide TV rights latest by May 17, 1993, on the
following basis, namely, outright purchase of TV rights and
sharing of rights fee. On May 14, 1993 DD by its fax
addressed to CAB stated that it was committed to its earlier
bid of Rs. 1 crore, namely, exclusive TV right in India
alone. The DD also stated that as there was a speculation
that Pakistan may not participate in the tournament, which
may affect viewership and consequent commercial accruals, DD
would have to rethink on the said bid also, in such an eventuality and requested CAB to reply to the said letter at the
earliest.
88. On June 14, 1993, according to the NUB, without
obtaining the required clearances from the Government for
telecasting, the CAB entered into an agreement with the
World Production Establishment (W/PE) representing the
interests of TWI [Trans World International], for
telecasting all the matches. The said agreement provided
for the grant of sole and exclusive right to sell/licence or
otherwise exploit throughout the world ’Exhibition Rights’
in the tournament. CAB shall only retain radio rights for
the territory of India. The CAB under the agreement was to
receive not less than US $550,000 as guaranteed sum. If any
income from the rights fee is received in excess of the
guaranteed sum, it was to be retained wholly by WPE until it
was eventually split into 70:30 per cent as per the agreement. If the rights fee/income received was less than
guaranteed sum, WPE was to pay the difference to CAB. The
WPE was to pay, where possible, television license fee in
advance of the start of the tournament.
89. On June 18, 1993, DD sent a fax to CAB stating therein
that from the press reports, it had learnt that CAB had entered into an agreement with TWI for the TV coverage of the
tournament, and the DD had decided not to telecast the
matches of the tournament by paying TWI, and that DD was not
prepared to enter into any negotiations with TWI to obtain
the television rights for the event. On June 30, 1993, DD
also informed similarly to International Management Group,
Hong Kong.
90. On September 2, 1993, the Department of Youth Affairs
and Sports, Ministry of Human Resources Development,
addressed a letter to the CAB informing it that the
Government had no objection to the proposed visit of the
Cricket Teams of Pakistan, South Africa, Sri Lanka, West
Indies and Zimbabwe, to India for participation in the
tournament. The Department further stated that no foreign
national shall visit any restricted/protected/prohibited
area of India without permission from the Ministry of Home
Affairs. It was also clarified that the sanction of foreign
exchange was subject to the condition that CAB would utilize
only the minimum foreign exchange required for the purpose
and shall deposit foreign exchange obtained by
167
it by way of fee, sponsorship, advertisements, broadcasting
rights, etc. through normal banking channels under intimation to the Reserve Bank of India. On September 17, 1993 on
the application of CAB made on September 7, 1993, VSNL advised CAB to approach the respective Ministries and the
Telecom Commission for approval (a) regarding import of
earth station and transmission equipment and (b) for
frequency clearance from Telecom Commission. The satellitehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 109
to be used for the transmission coverage, was also required
to be specified. It was further stated that CAB should
approach VSNL for uplinking signal to INTELSAT at Washington. The TWI was advised to apply VSNL for necessary
coordination channels and DD phone facility covering each
location. On October 9, 1993, TWI wrote to VSNL seeking
frequency clearance from the Ministry of Communications.
The TWI informed VSNL that they will be covering the
tournament and that they were formally applying for its permission to uplink their signal as per the list attached to
the letter. They also sought frequency clearance for the
walkie-talkie .On October 13, 1993, the Ministry of Home
Affairs informed the CAB that the Ministry had ’no
objection’ to the filming of the cricket matches at any of
the places mentioned in the CAB’s letter and that the ’no
objection’ pertains to the filming of the matches on the
cricket grounds only. The Ministry also gave its ’no objection’ to the use of walkie-talkie sets in the play grounds
during the matches subject to the permission to be obtained
from WPC.
91.On October 18, 1993, the CAB addressed a letter to DD for
telecasting rights for telecasting matches mentioning its
earlier offer of rights for telecasting and pointed out that
the offer of Rs.10 million made by DD vide its fax message
dated March 31, 1993 and on the condition the CAB should not
grant any right to Star TV was uneconomical, and considering
the enormous organizational cost, they were looking for a
minimum offer of Rs.20 million. The CAB also pointed out
that the offers received by them from abroad including from
TWI, were much higher than Rs.20 million and that the
payment under the offers would be made in foreign exchange.
The CAB also stated that they were given to understand that
DD was not interested in increasing their offer and hence
they entered into a contract with TWI for telecasting the
matches. However, they were still keen that DD should come
forward to telecast the matches since otherwise people in
India would be deprived of viewing the same. Hence they had
made TWI agree to co-production with DD and they also prayed
the DD for such co-production. The CAB’s letter further
stated that during a joint meeting the details were worked
out including the supply of equipment list by the respective
parties, and it was decided in principle to go for a joint
production. The CAB stated that it was also agreed that DD
would not claim exclusive right and CAB would be at liberty
to sell the rights to Star TV. Thereafter CAB learnt from
newspaper reports that DD had decided not to telecast the
matches. Hence they had written a letter to DD dated
September 15, 1993 to confirm the authenticity of such news,
but they had not received any reply from DD. It was pointed
that in the meanwhile they had been repeatedly approached by
Star TV, Sky TV and other network to telecast matches to the
Indian audience and some of them on an exclusive basis.
But they
168
had not taken a decision on their offers, since they did not
want to deprive DD’s viewers. It was further recorded that
the CAB had also learnt recently that DD would be interested
in acquiring the rights of telecast provided it was allowed
to produce the matches directly, and the matches produced by
TWI were made available to it live, without payment of any
technical fees. After recording this, the CAB made fresh
set of proposals, the gist of which was as follows:
1. TWI and Doordarshan would cover 9 (nine)
matches each in the tournament independently,
which are as follows:http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 109
Trans World International
November
08 South. Africa v. Zimbabwe (Bangalore)
11 India v. S. Africa (Delhi Chandigarh)
13 W.Indies v. S.Africa (Bombay, Brabourne)
16 Pakistan v. S.Africa (Cuttack)
19 S.Africa v.Sri Lanka (Guwahati)
21 India v. Pakistan (Chandigarh)
23 First Semi Final (Calcutta)
- Second Semi Final (Calcutta)
- Final (Calcutta)
Doordarshan
November
07 India v. Sri Lanka (Kanpur)
09 W.Indies v. Sri Lanka (Bombay,Wankhede)
15 Sri Lanka v. Zimbabwe (Patna)
16 India v. W. Indies (Ahmedabad)
18 India v. Zimbabwe (Indore)
21 W. Inidies v.Zimbabwe (Hyderabad)
2. TWI will do the coverage of thesematches
with their own equipment, crew and
commentators. Similarly, Doordarshan will
also have their own crew, equipment and
commentators for the matches produced by them.
3. Doordarshan will be at liberty to use
their own commentators for matches produced by
TWI for telecast in India. Similarly, TWI may
also use their own commentators if they
televised matches produced by Doordarshan in
other networks.
4. TWI will allow Doordarshan to pick up
the Signal and telecast live within India,
free of charges. Similarly, Doordarshan will
allow TWI to have the Signal for
live/recorded/highlights telecast abroad, free
of charges.
5. Doordarshan will not pay access fees to
CAB, but shall allow 4 minutes advertising
time per hour (i.e. 28 minutes in 7 hours).
The CAB will be at liberty to sell such time
slot to the advertisers and the proceeds so
received will belong to CAB.
6. Contract will be entered upon by the CAB
and Doordarshan directly for the above
arrangements. TWI will give a written
undergoing for the coverage breakup as
mentioned in point 1.
7. Score Card and Graphics shall be
arranged by CAB and the expenses for such
production or income derived from sponsorship
shall be on the account of CAB. Both TWI and
Doordarshan will use such Score Cards and
Graphics as arranged by CAB.
92. The CAB requested the DD to communicate their final
decision in the matter before October 21, 1993.
93. On October 26, 1993 VSNL sent a communication to
INTESLSAT at Washinton seeking information of uplinking
timings for TV transmission asked for by CAB/TWI. On October
27, 1993 the Tele-
169
communications Department sent a letter to the Central Board
of Excise and Customs on the question of temporarily importing electronic production equipment required for
transmission of one-day matches of the tournament and
conveying ’ no objection’ of the Ministry of Communicationshttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 109
to the proposal, subject to the organizers coordinating with
WTC (DoT) for frequency clearance, from the "Standing
Advisory Committee on Frequency Allocation (SACFA)", for TV
up-linking from different places and coordinating with VSNL,
Bombay for booking TV transponders.
94. On October 27, 1993, DD informed CAB with reference to
its renewed offer of October 18, 1993 that the terms and
conditions of the offer were not acceptable to it and that
they have already intimated to them that DD will not take
signal from TWI - a foreign Organisation. They also made it
clear that they had not agreed to any joint production with
TWI. On October 29, 1993, CAB replied to DD that they were
surprised at the outright rejection of the various
alternative proposals they had submitted. They had pointed
out that the only reason given for rejection was that DD
will not take signals from TWI, which was a foreign organization. Since they had also suggested production of live
matches by DD the question of taking signal from TWI did not
arise. CAB further stated that purely in deference to DD’s
sensitivity about taking signal from TWI, CAB would be quite
happy to allow DD to produce its own picture of matches and
DD may like to buy rights and licenses from CAB at ’a price
which will be mutually agreed upon, and that these rights
would be on nonexclusive basis on Indian territory. On
October 30, 1993, DD sent a message to CAB stating that DD
will not pay access fee to CAB to telecast the matches.
However, for DD to telecast the matches live, CAB has to pay
technical charges/ production fee at Rs.5 lakh per match.
In that case DD will have exclusive rights for the signal
generated and the parties interested to take the signal will
have to negotiate directly with the DD. On October 31, 1993
DD sent a fax message to CAB to the same effect.
95. On November 1, 1993 VSNL deputed its engineers/staff to
be at the venues where the matches were being played to
coordinate with TWI for TV coverage. On November 2, 1993,
TWI paid US $29,640 and [Pounds] 121,400 to VSNL as fees for
INTELSAT charges. On the same day, the Finance Ministry
permitted the equipment of TWI to be imported on certain
conditions by waiving the customs and additional duties of
customs. On November 4, 1993, CAB addressed a letter to DD
referring to DD’s fax message of October 31, 1993 asking for
certain clarification on the offer made by DD. In this
letter, CAB stated that since, DD had asked for fees for
production and telecast of matches, it was presumed that all
revenue generated from the matches or entire timeslot for
advertisements, would belong to CAB and that they shall have
the right to charge access fees including other charges from
parties abroad, and DD would telecast those matches for
which CAB will pay the charges. The choice of the matches
to be telecast by DD would be determined by CAB. On November 5, 1993, the DD rejected the terms.
96. On November 8, 1993, CAB filed
170
a writ petition in the Calcutta High Court praying, among
others, that the respondents should be directed to provide
telecast and broadcast of all the matches and also provide
all arrangements and facilities for telecasting and
broadcasting of the matches by the agency appointed by the
CAB, VI_., TWI. Interim reliefs were also sought in the
said petition. On the same day, the High Court directed the
learned advocate of the Union of India to obtain instructions in the matter and in the meanwhile. passed the interim
orders making it clear that they would not prevent DD from
telecasting any match without affecting the existing
arrangements between CAB and TWI. The writ petition washttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 109
posted for further hearing on November 9, 1993 on which day,
the learned Single Judge confirmed the interim orders passed
on November 8, 1993 and respondents were restrained from
interfering with the frequency lines given to respondents
NO.10 [TWI]. On 10th November, 1993, VSNL advised INTELSAT
at Washington seeking cancellation of its request for booking. On November 11, 1993, the learned Judge partly allowed
the writ by directing All India Radio to broadcast matches.
On November 12, 1993 in the appeal filed by the Union of
India against the aforesaid orders of the Division Bench,
the High Court passed interim order to the following effect:
(a)that CAB would pay DD a sum of Rs.5 lakh per match and
the revenue collected by DD on account of sponsorship will
be kept in separate account.
(b)that DD would be the host broadcaster.
(c)that Ministry of Telecommunication would consider the
question of issuing a
license to TWI under the Telegraphs Act and decide the same
within three days.
97. On November 12, 1993, the Film Facilities Officer of the
MIB informed the Customs Department at New Delhi, Bombay and
Calcutta airports, that as TWI had not obtained required
clearances from the Government for the coverage of the
tournament, they should not be permitted to remove exposed
film outside India till it was cleared by the Government.
On the same day, DD asked the CAB providing various
facilities at each match venue as this was pre-requisite for
creating host broadcaster signal in India. CAB sent a reply
on the same day and called upon the DD to telecast matches
within India pursuant to the High Court’s order. On the
same day again the Collector of Customs, Bombay called upon
CAB to pay customs duty on the equipment as there was a
breach in the terms of the, exemption order.
98. On the same day, i.e., November 1993, again the
Committee of Secretaries decided that the telecast of all
sporting events would be within the exclusive purview of the
DD/MIB. It was also decided that for the purposes of
obtaining necessary clearances for telecasting different
types of events for the country, a Single Window service
would be followed where the concerned Administrative Ministry would be the ’Nodal’ Ministry to which’ the
application will be submitted and it would thereafter be the
function of the ’Nodal’ Ministry to obtain permissions from
the concerned Ministry/Agencies.
99. On 14th November, 1993, the High Court in clarification
of its order of No-
171
vember 12, 1993 directed, among others, as follows:
[a] In case the signal is required to be generated by TWI
separately, such necessary permission should be given by DD
and/or other competent authorities. .
[b] The differences with regard to the placement of cameras
etc., if any, between cricket authority and DD should be
mutually worked out, and if this cannot be done, the dispute
should be decided by the Head of the Police in the place
where the match was being played.
[c] The equipment of TWI which had been seized by the
Customs Authority should be released upon undertaking that
the same would not be used for any. other purpose and
[d] The VSNL should take proper steps for uplinking, and
should not take any steps to defeat the orders of the Court.
The TWI should comply with all financial commitments to
VSNL.
100. On November 15, 1993, the CAB and another filed the
present Writ Petition No. 836 of 1993. On November 15.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 109
1993, this Court passed an order directing the Secretary
Ministry of Communications to hold meeting on the same day
by 4.30 P.M. and communicate his decision by 7.30 P.M. The
Customs Authorities were directed to release the equipments.
On the same day at night another order was passed partly
staying the orders of the Chairman, Telecommunications and
Secretary, Dot. TWI was permitted to generate its own
signals and Customs Authorities were directed to release the
goods forthwith.
101. , The DD filed Contempt Petition in
the High Court on the same day against CAB and another, for
noncompliance with the orders of the High Court. The DD
also filed the present Special Leave Petitions in this Court
on the same day.
102. What emerges from the above correspondence is as
follows. The CAB as early as on 15th March, 1993, had
offered to the DD two alternatives, viz., either the DD
would create host broadcaster signal and undertake live
telecast of all the matches in the tournament or any other
party may create the host broadcaster signal and DD would
purchase from the said party the rights to telecast the said
signal in India. The CAB made it clear that in either case,
the foreign TV rights would remain with it. The CAB also
asked the DD to indicate the royalty that it will be willing
to pay in either case. To that, on 18th March, 1993, the DD
rejoined by asking in turn the amount of royalty that the
CAB expected if the rights were given to it exclusively for
India without the. Star TV getting it. On 19th March,
1993, the CAB informed the DD that they would charge US $8
lakhs for giving the DD the right to create the host
broadcaster signal
and also for granting it exclusive right for India without
the Star TV getting it It was however, emphasised that the
CAB would reserve the right to sell/license the right of
broadcasting worldwide excluding India and the Star TV. The
CAB also stated that the DD would be under an obligation to
provide a picture and commentary subject to payment of DD’s
technical fees. On 31st March, 1993, the DD sent its bid as
host broadcaster for a sum of Rs.1 crore [i.e.. about US
$3.33 lakhs at the then exchange rate]. Obviously, this was
less than 50 per cent of the royalty which was demanded by
the CAB. The
172
CAB was, therefore, justified in looking for other
alternatives and that is what they did before the DD by a
fax message of 4th May, 1993 reminded the CAB about DD’s
offer of Rs. 1 crore [i.e., US $3.33 lakhs]. To that
message, the CAB replied on 12th May, 1993 that it had
decided to sell/allot worldwide TV rights to only one party
and, therefore, they would like to know whether the DD would
be interested in the said deal and if so, to send their
offer for worldwide TV rights, latest by 17th May, 1993. To
this, on 14th May, 1993, the DD by Fax, replied that it was
interested only in exclusive TV rights for India alone
without the Star TV getting it and that it stood by its
earlier offer of Rs. 1 crore [i.e., US $3.33 lakhs]. The
DD went further and stated that as there was a speculation
that-Pakistan might not participate in the tournament which
eventuality was likely to affect viewership and commercial
accruals, it will have to rethink on that bid also meaning
thereby that even the offer of Rs. 1 crore may be reduced.
103. According to the MIB, the CAB, thereafter, entered
into an agreement with World Production Establishment
representing the interests of TWI for telecasting all the
matches without obtaining clearance from the Government forhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 109
telecasting, and granted TWI sole and exclusive right to
sell or otherwise exploit all exhibition rights of the
tournament. Under the agreement with TWI, the CAB was to
receive US $ 5.50 lakhs as guaranteed sum and in addition,
if any rights fee income was received in excess of the
guaranteed sum, it was to be. split in the ratio of 70:30
between the parties, i.e. 70 per cent to the CAB and 30 per
cent to TWI. Learning of this, the DD informed the CAB that
it had decided not to telecast the matches of the
tournament by paying TWI TV rights fee and that it was not
prepared to enter into any negotiations with TWI for the
purpose.
104. Again on 18th October, 1993, CAB addressed a
letter to DD for telecasting the matches mentioning its
earlier offer of rights for telecasting and pointed out that
the offer of Rs. 1 crore made by DI) on the condition that
the CAB should not grant any right ’to Star TV was
uneconomical. CAB also pointed out that considering the
enormous organisational costs involved, they were looking
for a minimum offer of Rs.20 million.In this connection,
they pointed out that the offers received by them from
abroad-including from TWI were much higher than Rs.20
million and under those offers, the payment was also to be
received in foreign exchange. The CAB further stated in
that letter that they were given to understand that DD was
not interested in increasing their offer and hence they
entered into a contract with TWI for telecasting the
matches. Yet, they were keen that DD should telecast the
matches since otherwise people in India would be deprived of
viewing the same. They had, therefore, made the TWI agree
for co-production with DD. They, therefore, requested the
DD to agree to such co-production. The CAB also stated in
the said letter that in fact in a joint meeting, details of
such arrangement were worked out including the supply of
equipment list by the respective parties and it was decided
in principle to go in for joint production. In the meeting,
it was further agreed that DD would not claim exclusive
rights and the CAB would be at liberty to sell the rights to
Star TV. However, since subsequently they had learnt from
newspaper reports that DD had decided not to telecast the
matches, by their
173
letter of 15th September, 1993 they had asked DD to confirm
the authenticity of the news items. The DD, however, had
not responded to the said letter. In the meanwhile, many
other networks had repeatedly approached them for
telecasting matches to the Indian audience and some of them
on exclusive basis. But they had still kept the matter
pending since they did not want to deprive the viewers of
the DD of the matches. They further added that they had
also learnt that DD would be interested in acquiring rights
of telecast provided it was allowed to produce some matches
directly and the matches produced by TWI are made available
to it live without payment of any technical fee. The CAB,
therefore, in the circumstances, suggested a fresh set of
proposals for DD’s consideration and requested response before 21st October, 1993. On 27th October, 1993, DD
responded to the said letter in the negative and stated that
the offer made was not acceptable to it and they had already
communicated to that effect earlier, stating that they will
not take any signal from TWI. DD further denied that they
had agreed to any joint production with TWI. The CAB by its
letter of 29th October, 1993 pointed out, in response to
this letter, that since they had also suggested production
of live matches by DD, question of taking signals from TWIhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 109
did not arise, and in deference to DD’s sensitivity about
taking signals from TWI, CAB would be quite happy to allow
DD to produce its own picture of matches and DD may buy
rights and licences from it at a price which will be
mutually agreed upon.
105. Thus, the controversy between the parties was with
regard to the terms for the telecasting of the matches. It
must be noted in this connection that the DD had
never stated to the CAB that it had no frequency to spare
for telecasting the matches. On the other hand, if the CAB
had accepted the terms of the DD, DD was ready to telecast
the matches. Therefore, the argument based on resource
crunch as advanced on behalf of the MIB/ DD, is meaningless
in the present case.
106. All that we have to examine in the present case is
whether the MIB/DD had stipulated unreasonable conditions
for telecasting the matches. It is apparent from the above
correspondence between the parties that CAB wanted a minimum
of U.S. $8 lakhs, i.e., Rs.2.40 crores. However, DD
insisted that it would be the host broadcaster and will have
exclusive telecasting rights for India and for these rights.
it will pay only Rs. 1 crore. i.e. US $3.33 lakhs. It had
also threatened to reduce the said offer of Rs. one crore
because Pakistan was not likely to participate in the
tournament. When it was pointed out by the CAB that this
offer was uneconomical taking. into consideration the
enormous costs involved and that they were looking for a
minimum of Rs. 2 crores and had received higher offers from
other parties under which the payments will also be made in
foreign exchange, DD stuck to its earlier offer and refused
to raise it. In the meanwhile, the CAB received an offer of
U.S. $5.50 lakhs, i.e., Rs. 1.65 crores from TWI as
guaranteed sum plus a share to the extent of 70 per cent in
the rights income fee. The CAB being the sole organiser of
the event had every right to explore the maximum revenue
possible and there was nothing wrong or improper in their
negotiating with TWI the terms and conditions of the deal.
However, the only response of DD to these arrangements which
were being worked out between the CAB and
174
TWI was that it would not telecast the matches of the
tournament by paying TWI the fees for purchasing the rights
from that Organisation. Even then the CAB did not shut its
doors on DD, and by its letter of 18th October, 1993
informed the DD that it was keen that DD should telecast the
matches so that people in India are not deprived of viewing
the matches. They also informed the DD that it was with
this purpose that they had made TWI agree for co-production
with the DD and had made a fresh set of proposals. However,
these proposals were on materially different terms. To
this, the DD replied by its letters of 27th October, 1993
that the terms and conditions of the offer were not acceptable to it. The CAB by its letter of 29th October, 1993
again offered the DD that if their only objection was to
taking signals from TWI, since they had suggested production
of live matches by DD in their fresh proposals, there was no
question of taking signals from TWI and they should
reconsider the proposals. To this, the only reply of the DD
was that they will not pay any Access Fee to CAB to telecast
the matches and if DD were to telecast the matches, the CAB
will have to pay Technical/Production Fee at the rate of
Rs.5 lakhs per match, and in that case the DD will have
exclusive rights for the signal generated, and the parties
interested will have to take the signals from the DD after
negotiating directly with it. In other words, the DD tookhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 109
the stand that not only it will not pay any charges to the
CAB for the rights of telecasting the matches, but it is CAB
which will have to pay the charges, and that the DD will be
the sole producer of signals and others will have to buy the
signals from it..
107. Thus the correspondence between
the parties shows that each of the parties was trying to
score over the other by taking advantage of its position.
The blame for the collapse of the negotiations has to be
shared by both. The difference, if any, was only in the
degree of unreasonableness. If anything, this episode once
again emphasises the need to rescue the electronic media
from the government monopoly and bureaucratic control and to
have an independent authority to manage and control it.
108. Coming now to the change in the, stand of the
other Departments of the Government for granting facilities
to the agency engaged by the CAB, the facts make a revealing
reading. The actions of the various Departments of the
Government, referred to earlier, show firstly, that the Ministries of Human Resources Development, of Home Affairs, of
Finance, of Communications, and the VSNL had no objection
whatsoever to the arrangements which the CAB had entered
into with TWI, the foreign agency, for covering the cricket
matches. In fact they granted all the necessary permissions
and facilities to the CAB/TWI in all respects subject to
certain conditions with which neither the CAB nor TWI had
any quarrel. Secondly, these various Departments had
accepted TWI as the agency of CAB for the purposes of the
said coverage and they had no objection to the TWI covering
the matches on the ground that it was a foreign agency.
This was the situation till the writ petition was filed by
the CAB in the Calcutta High Court on 8th November, 1993.
It is necessary to remember in this connection that the
decision or the DD to intimate CAB that it will not pay even
access fee to the CAB to telecast the tournament and that it
was for the CAB to pay the technical/pro-
175
duction fee of Rs. 5 lakhs per match with DD having
exclusive right for the signal generated, and others will
have to buy it after negotiating directly with the DD, was
taken on 30th/31st October, 1993. It is in that context
that further developments which are relevant for our purpose
and which took place during the pendency of the Court
proceedings, have to be viewed. It is only on 12th
November, 1993 that the Committee of Secretaries came out
with the concept of the ! nodal ministry. By itself, the
decision to form the nodal ministry to coordinate the
activities of all the concerned ministries and departments
is unexceptional. But the time of taking the decision and
its background was not without its significance. However,
there is no adequate material on record to establish a nexus
between the MIB/DD and the aforesaid actions of the other
authorities.
109. The nexus in question was sought to be established
by the CAB by pointing out to the letter addressed by the
Deputy Secretary in MIB with the approval of the Secretary,
of that Ministry to Department of Youth Affairs and Sports
of the Ministry of Human Resources Development. It in terms
refers to the meeting of the committee of Secretaries on
12th November, 1993 and states that according to the socalled "extant policy" of the Government, as endorsed by the
Committee of Secretaries, the telecasting of sporting events
is within the exclusive purview of DD/MIB. Accordingly, the
NIB opposes the grant of any permission to M/s. WPE or its
agency TWI or any Indian company to cover the matches forhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 109
general reception in India through uplinking facility except
in collaboration with DD with only the latter being the sole
agency entrusted with the task of generating TV signal from
the venue
of the matches. It further states that the MIB opposes [i]
import of any satellite earth station for the coverage of
the series, [ii] the grant of any ad-hoc exemption for the
import of equipment by WTE or TWI without their first
producing the approval of the competent authority permitting
its use within India, in terms of the provisions of Indian
Telegraph Act, 1885 and the Wireless Telegraph Act, 1933 in
the absence of which possession of such equipment within
India constitutes an offence, [iii] M/s. WTE or TWI being
permitted to undertake shooting of the cricket matches at
different places and grant of visa or RAP to its personnel
for visiting India, and [iv] the grant of any permission to
any aircraft leased by M/s. WPE/TWI for landing at any
international or national airport.
110. It was urged that the question of the absence of
permission/licence of the requisite authorities under the
Indian Telegraph Act and the Wireless Telegraph Act was
never raised or made a ground for denial of the right to the
BCCI/CAB to telecast the matches or to uplink the signal
through TWI till after CAB had approached the Calcutta High
Court on 8th November, 1993. It was contended that the MIB
woke up suddenly to the relevant provisions of the statute
after the Court proceedings. We are, however, not satisfied
that these events conclusively establish that the other
Departments acted at the behest of the DD/MIB.
111. The circumstances in which the High Court case to
pass its interim order dated 12th November, 1993 may now be
noticed. The MIB and DD’s appeals are directed against the
said order ’and writ petition is filed by the CAB for
direction to respondent Nos. 1 to 9, which include,
176
among others, Union of India.
112. In the writ petition filed by the CAB before the
High Court on 8th November, 1993, the learned Single Judge
on the same day passed an order of interim injunction
commanding the respondents to provide all adequate
facilities and cooperation to the petitioner and/or their
appointed agency for free and uninterrupted telecasting and
broadcasting of the cricket matches in question to be played
between 10th and 20th November, 1993, and restrained the respondents from tampering with, removing, seizing or dealing
with any equipment relating to transmission, telecasting or
broadcasting of the said matches, belonging to the CAB and
their appointed agency, in any manner whatsoever. On the
next day, i.e., 9th November, 1993 the said interim order
was made final. On the 11th November, 1993, on the
application of the CAB complaining that the equipment
brought by their agency, viz., TWI [respondent No. IO to the
petition] were seized by the Bombay Customs authorities
under the direction issued by the Ministry of Communications
and the MIB, another order was passed by the learned Judge
directing all Government authorities including Customs
authorities to act in terms of the interim orders passed
earlier on 8th/9th November, 1993. While passing this order
in the presence of the learned counsel for the respondents
who pleaded ignorance about the seizure of the equipment by
the Customs authorities, the learned Single Judge observed,
among other things, as follows:
"It is submitted by the learned Counsel on behalf of the
respondent that since Doordarshan has been denied
telecasting of the tournament by the respondent No. 6,http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 109
Akasliban has also decided to stop broadcasting and in support of his contention has produced a
letter dated 10th of November, 1993 issued by the Station
Director, Calcutta, for Director General, All India Radio to
Shri S.K. Kundu, Central Government’s Advocate whereupon it
appears that it was admitted, that All India Radio had
planned to provide running commentary of the matches of the
above tournament organised by the Cricket Association of
Bengal, but as Doordarshan was denied the facility of
nominating the Host Broadcaster’s Signal and it consequently
decided not to cover those matches, All India Radio also had
decided to drop the coverage of those matches since the
principles on which Doordarshan based its decision, viz.,,
the protection of inherent interest of the National Broadcasters to generate the signal of sports, applied equally to
the All India Radio.
I fail to understand the logic behind the said letter and
the stand taken by the All India Radio in the matter which
appears to me wholly illogical and ridiculous, Doordarshan
might have some dispute with the.... regarding the right to
be the Host Broadcasters Signal including financial
questions, but the All India Radio, which itself volunteered
to broadcast the matches themselves, and when, admittedly,
no financial transaction is involved between the All India
Radio and the respondent No.6, denial of the All India Radio
to broadcast the said matches only on the ground that since
Doordarshan
was denied by the respondent No.6 to be 1 the Host
Broadcaster’s Signal, the All India Radio stopped
broadcasting the matches following the same principle, appears to be absolutely whimsical and capricious.
x x x x x x
Such denial by the All India Radio certainly is an act done
against the public interest and thus cannot be supported
and/
177
or upheld to deprive the general people of India of such
small satisfaction...
x x x x x x
Accordingly, I find the action of the All India Radio in
stopping the broadcasting of aforesaid tournament is wholly
illegal, arbitrary and mala fide....
This writ application accordingly succeeds and allowed to
the extent as stated above, and let a writ in the nature of
mandamus to the extent indicated above be issued."
113. The Union of India preferred an appeal against the said
decision and in the appeal moved an application for staying
the operation of the orders passed by the learned Single
Judge on 8th/9th November, 1993. Dealing with the said
application, the Division Bench in its order dated
other things, as follows:
"Mr. R.N. Das, learned Counsel appearing for and on behalf
of the Union of India and others including the Director
General of Doordarshan, appearing with Mr. B. Bhattacharya
and Mr. Prodosh Mallick submitted inter alia, that the
Doordarshan authority is very much inclined and keen to
telecast the Hero Cup matches in which several parties from
abroad are participating including India. But it was
pointed out that the difficulties have been created by
Cricket Association of Bengal in entering into an agreement
with Trans World International [UK] Inc. World Production
the respondent No.10 of the writ petition wherein the
Cricket Association of Bengal has given exclusive rights to
telecast to that authority. It was submitted by Mr. Das
that under Section 4 of the Indian Telegraph Act, 1885 thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 109
Central Government have the exclusive privilege of
establishing, maintaining
and working telegraph and that it was further submitted that
the expression telegraph includes telecasts through
Doordarshan. it was further provided that proviso to Section
4 [1] of the said Act provides that the Central Government
may grant a licence on such conditions and in consideration
of such payments as it thinks fit to any person to
establish, maintain or work a telegraph within any part of
India. Relying upon the provisions it was submitted that
neither the CAB nor the TWI respondent No. 10 of the writ
application have obtained any licence for the purpose of
telecasting the matches direct from India."
114. The Court then referred to the correspondence between
the CAB and the DD between 31st March, 1993 and 31st October, 1993 and the letters of no objection issued to the CAB
by the Ministry of Communications and the VSNL and to the
acceptence by the VSNL of the payments from TWI as per the
demand of the VSNL itself for granting facilities of
uplinking the signal and recorded its primafacie finding
that the DD was agreeable to telecast matches live for India
on a consideration of Rs.5 lakhs per match which was accepted under protest and without prejudice by the CAB and
the only dispute was with regard to the revenue to be earned
through advertisements during the period of the matches.
The Court said that it was not adjudicating on as to what
and in what manner the revenue through advertisements would
be created and distributed between the parties. It left the
said points to be decided on merits in the appeal pending
before it and proceeded to observe as follows:
"... but it present having regard to the
interest of millions of Indian viewers who are
anxiously expecting to see such live
178
telecast, we record as Doordarshan is inclined
to telecast the matches for the Indian viewers
on receipt of Rs.5 lakh per match and to enjoy
the exclusive right of signalling within the
country being host broadcaster, we direct the
CAB to pay immediately a sum of Rs.5 lakhs per
match for this purpose and the collection of
revenue on account of sponsorship or otherwise
in respect of 28 minutes which is available
for commercial purpose be realised by the
Doordarshan on condition that such amount
shall be kept in a separate account and shall
not deal with and dispose of the said amount
until further orders and we make it clear
regarding the entitlement and the manner in
which the said sum will be treated would abide
by the result of the appeal or the writ appli-
cation. Accordingly, it is made clear that
Doordarshan shall on these conditions start
immediately telecasting the live matches of
the Hero Cup for the subsequent matches from
the next match in India. Mr. Das Id. counsel
appearing on behalf of the appellant submits
that they were in a position technically or
otherwise to telecast immediately. With
regard to the right of TWI to telecast the
matches outside India is concerned, we also
record that on time of hearing the counsel
appearing on behalf of the appellant showed an
order in three lines that the authority
concerned has summarily and without giving anyhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 109
reason and/or any hearing whatsoever directed
to VSNL not to allow the TWI to transmit or to
telecast from India in respect of the Hero Cup
matches but it was submitted by the learned
Counsel appearing for the appellant that they
are very much keen to consider the matter in
proper perspective in accordance with laws,
having regard to the national impact on this
question. It appears that on the basis of the
representation made by VSNL, TWI came into the
picture and subsequently TWI entered into an
agreement with the CAB. At this stage, we are
not called upon to decide the validity or
otherwise
of such an agreement entered into by the
parties. As a matter of fact, we are refer-
ring this without prejudice to the rights and
contentions of the parties. It further
appears that the Government of India through
the Department of Communication stated that
the said department had no objection with
regard to the permission to the CAB for
temporarily importing electronic product
equipments required for transmitting one day
matches of the Hero Cup as a part of Diamond
Jubilee Celebration to be started from
November 7 to 27, 1993, the Ministry has no
objection to proposal "subject to the
organisers Co-ordinating with WPC [DOT] for
frequency clearance from the Standing Advisory
Committee on frequency allocation {SACFA} for
TV uplinking from different places and
coordinating with VSNL, Bombay for booking of
TV transponders etc. It appears that the said
no objection certificate has created a
legitimate expectation, particularly in view
of the fact that the money demanded by VSNL in
this behalf was duly paid by TWI and all ar-
rangements have been made by TWI for
performing the job. As we find that no formal
permission is required under proviso to
Section 4 [1] of Indian Telegraph Act is there
in favour of the party, having regard to the
facts stated above and having regard to
National and International impact on this
question and having regard to the fact that
any decision taken will have the tremendous
impact on the International sports, we direct
the appellant No.5 who is respondent No.6 in
the writ application. The Secretary, Ministry
of Telecommunication, Sanchar Bhavan, New
Delhi, Government of India to consider the
facts and circumstances of the case clearly
suggesting that there had already been an
implied grant of permission, shall grant a
provisional permission or licence without
prejudice to the rights and contentions of the
parties in this appeal and the writ
application and subject to the condition that
the respondent No.6
179
in the writ application will be at liberty to
impose such reasonable terms and condi- tions
consistent with the provision to Section 4
[1]of the Indian Telegraph Act, having regardhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 59 of 109
to the peculiar facts and circumstances of the
case. If TWI comply with such terms and
conditions that may be imposed without
prejudice to their rights and contentions in
the interest of sports and subject to the
decision in this appeal or the writ
application shall be entitled to telecast for
International viewers outside India.... The
Secretary, Ministry of Telecommunication,
Sanchar Bhavan, New Delhi, Government of In-
dia, is directed to decide this question as
directed by us within three days from today
and all the parties will be entitled to be
heard, if necessary. We must put in on record
our anxiety that the matter should be taken in
the spirit of sports not on the spirit of
prestige or personal interest and should
approach the problem dispassionately rising
above all its narrow interest and personal
ego..... In order to comply with this order
any order of detention of the equipments of
TWI should not be given effect to."
115. The Court also made it clear that in order to comply
with its order, any order of detention of the equipments of
TWI should not be given effect to. Notwithstanding this
order or probably in ignorance of it, the Collector of
Customs, Bombay wrote to the CAB that it had given an
undertaking to fulfill all the conditions of the ad hoc
order dated 2nd November, 1993 under which exemption was
given to it for importing the equipments. However, it had
not fulfilled the conditions laid down at [1] and [iii] of
para 2 of the said ad hoc exemption order and, therefore, it
should pay an amount of Rs.3,29,07,711/as customs duty on
the equipment imported by TWI. They also threatened that if
no such duty was paid, the goods would be confiscated. In
view of the said show cause notice, the CAB moved the
Division Bench and on 14th November, 1993. The lawyer of
TWI also wrote a letter in the meanwhile on 13th November,
1993 to the Customs authorities at Bombay stating therein
that as TWI had sent a letter enclosing a copy of the order
of the Division Bench passed on 12th November, 1993
directing them not to give effect to the detention of the
equipments and complaining that in spite of it they had not
released the goods and, therefore, they had committed a contempt of the Court. This grievance of CAB and TWI along
with the complaint of the DD for not permitting them to
place their cameras at the requisite places, were heard by
the Division Bench on 14th November, 1993 when the match was
already being played in Bombay. The Bench observed that the
Court was given to understand that none of the parties was
inclined to go higher up against its earlier order and that
what was required was certain clarification of that order in
the changed circumstances. The learned counsel for the CAB
stated that they were not going to oppose the DD placing
their cameras but the dispute had arisen as to the
signalling to be made for the telecast. According to the
learned counsel for the Union of the India, there could be
only one signalling from the field and DD should be treated
as host broadcaster and the TWI should take signal from it.
This was opposed by the learned counsel for the CAB who contended. that DD had been given exclusive right as host
broadcaster so far as the telecasting of matches in India
was concerned. The telecasting of matches abroad was to be
done by TWI. The Division Bench held that the DD will have
the exclusive right of signalling for the purposes of tele-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 60 of 109
casting within the country, and they were to be treated as
host broadcasters so far as
180
telecasting within India was concerned. As far as TWI is
concerned, if it was authorised and permitted in terms of
their earlier order, it would be entitled to telecast
outside the country and to send their signal accordingly.
They also stated that in case the signalling was required to
be made by the TWI separately the necessary permission
should be given by the DD or other competent authorities.
They resolved the dispute with regard to the placement of
cameras by directing that DD will have first priority and if
there was any dispute on that account it would be resolved
by the local head of the Police Administration at the venue
concerned. They also directed the Customs authorities,
Bombay to release the equipments imported for the purposes
of TWI with the condition that the said equipments will be
used only for transmission of the matches and they shall not
deal with or dispose of the said equipments or remove it
outside the country without the permission of the Court. In
particular, they also directed the VSNL to take proper steps
for uplinking and not to take any step to defeat the
purpose.
116. Against the said order of the Division Bench, the
present appeals are preferred by the Ministry of Information
and Broadcasting and others whereas the writ petition is
filed by the CAB for restraining the respondents, (which
include, among others, Union of India [No. 1], Secretary,
Ministry of Information & Broadcasting [No.2], Director
General, Doordarshan [No.3], Secretary, Ministry of Communications [No.5], Director, Department of Telecommunications
[No.6], and Videsh Sanchar Nigam Limited [No.9], from preventing, obstructing and interfering with or creating any
hurdles in the implementation of agreement dated 14.6.1993
between the petitioner-CAB and respondent No. 10, i.e., TWI.
117. The matter was heard by this Court on 15th November,
1993. It appears from the record that although the High
Court had directed the Secretary, Ministry of Communications
to decide the question of granting of licence under Section
4 [1] of the Telegraph Act within 3 days from 12th November,
1993 by its order of the same day, the Secretary had fixed
the meeting for consideration of the application only on the
16th November, 1993. ’Mat itself was a breach of the High
Court’s order. This Court, therefore, directed the Secretary to hear the matter at 4.30 p.m. on 15th November, 1993
and communicate its decision to TWI or its counsel or to the
CAB or its counsel immediately thereafter but before 7.30
p.m. on the same day. This Court also directed the Customs
authorities to release the equipment forthwith which they
had not done in spite of the High Court’s order. The TWI
and CAB were, however, restrained from using the said
equipment till the licence was issued by the Secretary,
Department of Telecommunication.
118. Pursuant to the direction given by this Court, the
Secretary by his order of 15th November, 1993 after
referring to the judgment of the High Court and its implication and after taking into consideration the arguments of
the respective parties, held as follows:
"In this connection, we have to take into account an
important point brought to our notice by the Director
General Doordarshan. It is true that Section 4 of the
Indian Telegraph Act of 1885 enables the government to give
licences to agencies other than Doordarshan or the
181
government departments to telecast. In fact, such ahttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 61 of 109
permission had been given in January 1993 when the cricket
matches were telecast by the same TWI. However,
subsequently, I am given to understand that the government
policy in the Ministry of I&B has been that the uplinking
directly by private parties/foreign agencies from India for
the purpose of broadcasting should not be permitted.
It is true that in a cricket match we are not considering
security aspects. But, the point to be considered is
whether uplinking. given in a particular case will have its
consequences on other such claims which may not be directly
linked to sports and which will have serious implications.
Within the government, as per Allocation of Business Rules,
it is the Ministry of I&B which has the responsibility for
formulation and implementation of the policies relating to
broadcasting/telecasting.
As was made clear earlier, in this case, we are considering
two aspects. One is the generation of signals and the
second is their communication. The Department of
Telecommunication comes in the picture so far as the
communication aspect is concerned.
Taking into account the facts mentioned above, the only
reasonable conclusion I reach is that permission may be
given to TWI for telecast overseas through the VSNL, while
Doordarshan will be telecasting within the country. The TWI
will have to get the signals from Doordarshan for uplinking
through the VSNL by making mutual arrangements. So far as
VSNL is concerned, there should be no difficulty in
transmitting the signals through Intelsat as already agreed
upon.
In my view, the above decision takes into account the needs
of the millions of viewers both within the country and
abroad
who are keen to watch the game and at the same time ensures
that there is no conflict with the broad government policy
in the Ministry of I&B which is entrusted with the task of
broadcasting. It also takes into account the overall
aspects and the reasonable expectation created within the
TWI by the series of clearances given by the different
authorities of the Government of India".
119. This order which was passed around 7.30 p.m. was
challenged by the CAB, and being an urgent matter, was heard
by the Court late at night on the same day. The Court
stayed the order of the Secretary to the extent that it
imposed a condition that the TWI will have to get the
signals from the DD for uplinking through the VSNL by making
mutual arrangements. The Court directed that the TWI can
generate its own signal by focusing its cameras only on the
ground where the matches were being played, as directed by
the Ministry of Home Affairs and that they will take care
not to focus their cameras anywhere else.
120. For telecasting the triangular series and the West
Indies tour to India in 1994 season, the same disputes arose
between the parties. By their letter of 25th August, 1994,
the BCCI requested the Director, Sports, of the Ministry of
Human Resources Development, Department of Youth Affairs and
Sports to grant permission to it or TWI/SPN to telecast the
triangular series and matches to be played between India and
West Indies. By their letter of 30th August, 1994 written
to the Secretary, Department of Sports, the MIB opposed the
grant of uplinking facilities to any foreign agency. On
14th September, 1994, Ishan Television India Ltd. [with a
tie-up with ESPN which had contract with
182
BCCI, applied to the VSNL for uplinking facilities for
telecasting of the said matches. The VSNL thereafter wrotehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 62 of 109
to the NM for their "no objection" and the NUB opposed the
grant of "no objection" certificate and objected to VSNL
writing to the MIB directly for the purpose. The MM also
stated that their view in the matter was very clear that
satellite uplinking from Indian soil would be within the
exclusive competence of the MIB/DoT/DOS-and that the
telecast of sporting events would be the exclusive privilege
of DD. By their letter of 26th September, 1994, the ’nodal’
Ministry, i.e., Ministry of Human Resources Development
[Department of Youth Affairs and Sports addressed to all
the Ministries and Departments including the MIB called for
the remarks on the letter of the BCCI addressed to the nodal
Ministry. The MIB again wrote to the Sports Department of
the nodal Ministry, opposing grant of Single Window service
to the BCCI. On 3rd October, 1994, the VSNL returned the
advance which it had received from Ishan TV for uplinking
facilities. On 7th October, 1994, this Court passed the
following order:
"Pending the final disposal of the matters by
this interim order confined to telecast the
International Cricket Matches to be played in
India from October 1994 to December 1994, we
direct respondent Nos. 1 and 6 to 9 in Writ
Petition No.836/ 93 to grant forthwith
necessary permission/sanctions and uplinking
facilities for production, transmission and
telecasting of the said matches.
We also direct respondent Nos.2, 3 and 4 in
writ petition No.836/93 and all other
Government Agencies not to obstruct/restrict
in any manner whatsoever production,
transmission and telecasting of the said
matches for the said period by
the petitioner-applicant only on the ground
where the Cricket Matches would be played and
the signals are generated under the direct
supervision of the VSNL personnel.
So far as the production, transmission and
telecasting of these matches in India is
concerned, the Doordarshan shall have the
exclusive right in all respects for the
purpose, and the petitioner-applicant shall
not prevent Doordarshan from doing so, and in
particular shall afford all facilities for
Doordarshan to do so.
So far as the placement of cameras are
concerned both petitioner-applicant as well as
Doordarshan shall have equal rights. This
shall be ensured by Shri Sunil Gavaskar in
consultation with such technical experts as he
may deem necessary to consult. He is
requested to do so. As far as the
remuneration for Shri Sunil Gavaskar and the
technical expert is concerned, both
Doordarshan as well as the petitioner-
applicant will share the remuneration equally
which will be fixed by this Court.
As regards the revenue generated by the
advertisement by Doordarshan is concerned,
Doordarshan will deposit the said amount in a
separate account and preferably in a
nationalised Bank. The Doordarshan will have
the exclusive right to advertisement. All the
IAs are disposed of accordingly".
121. Since certain disputes arose between the parties,http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 63 of 109
on 18th October, 1994, this Court had to pass the following
order:
"The BCCI will ensure that all Cricket
Associations and staging Centres shall extend
every facility to the personnel authorised by
the Doordarshan to enter into the Cricket
Ground for production, transmission and
telecasting of the
183
matches without any late or hindrance.
The BCCI will also ensure that all Cricket
Associations staging the matches will make
available every facility and render such
assistance as may be necessary and sought by
the Doordarshan for effective telecasting of
the matches at the respective grounds and
stadia.
The BCCI shall not permit the ESPN to enter
into any contract either with A.T.N. or any
other Agency for telecasting in any manner all
over India, whether through the Satellite
footprints or otherwise, Cricket Matches which
are being telecast in India by the
Doordarshan. If the ESPN has entered into any
such contract either with A.T.N. or any other
Agency, that contract should be cancelled
forthwith.
Since this Court is seized of the present
matter, no court should entertain any writ
petition, suit or application which is
connected in any manner with the discharge of
obligation imposed on the respective parties
to the present proceedings. If any such writ
petition suit or application is already
entertained, the Courts should not proceed
with the same till further orders of this
Court.
The BCCI and the Doordarshan will mutually
solve the problem of the Control Room and
Storage Room facilities needed by the
Doordarshan, preferably in one meeting La
Bombay on 20th October, 1994".
122. The law on the subject discussed earlier makes it clear
that the fundamental right to freedom of speech and
expression includes the right to communicate effectively and
to as large a population not only in this country but also
abroad, as is feasible. There are no geographical barriers
on
communication. Hence every citizen has a right to use the
best means available for the purpose. At present,
electronic media, viz., T.V. and radio, is the most
effective means of communication. The restrictions which
the electronic media suffers in addition to those suffered
by the print media, are that [i] the airwaves are a public
property and they have to be used for die benefit of the
society at large, [ii] the frequencies are limited and [iii]
media is subject to pre-censorship. The other limitation,
viz., the reasonable restrictions imposed by law made for
the purposes mentioned in Article 19 [2] is common to all
the media. In the present case, it was not and cannot be
the case of the NM that the telecasting of the cricket
matches was not for the benefit of the society at large or
not in the public interest and, therefore, not a proper use
of the public property. It was not the case of the MIB that
it was in violation of the provisions of Article 19 [2].http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 64 of 109
There was nothing to be pre-censored on the grounds
mentioned in Article 19 [2]. As regards the limitation of
resources, since the DD was prepared to’telecast the cricket
matches, but only on its terms it could not plead that there
was no frequency available for telecasting. The DD could
also not have ignored the rights of the viewers which the
High Court was at pains to emphasise while passing its
orders and to which we have also made a reference. The
CAB/BCCI being the organisers of the event had a right to
sell the telecasting rights of its event to any agency.
Assuming that the DD had no frequency to spare for
telecasting the matches, the CAB could certainly enter into
a contract with any agency including a foreign agency to
telecast the said matches through that agency’s frequency
for the viewers in this country [who could have access to
those frequen-
184
cies] as well as for the viewers abroad. The orders passed
by the High Court in effect gave a right to DD to be the
host broadcaster for telecasting in this country and for the
TWI, for telecasting for the viewers outside this country as
well as those viewers in this country who have an access to
the TWI frequency. The order was eminently in the interests
of the viewers whatever its merits on the other aspects of
the matter.
123. The orders passed by the High Court have to be viewed
against the backdrop of the events and the position of law
discussed above. The circumstances in which the High Court
passed the orders and the factual and legal considerations
which weighed with it in passing them speak for themselves.
However, since the cricket matches have already been
telecast, the question of the legality or otherwise of the
orders has become academic and it is not necessary to
pronounce our formal verdict on the same. Hence we refrain
from doing so.
124. We, therefore, hold as follows:
[i] The airwaves or frequencies are a public property.
Their use has to be controlled and regulated by a public
authority in the interests of the public and to prevent the
invasion of their rights. Since the electronic media
involves the use of the airwaves, this factor creates an inbuilt restriction on its use as in the case of any other
public property.
[ii] The right to impart and receive information is a
species of the right of freethe best means of imparting and receiving information and as
such to have an access to telecasting for the purpose.
However, this right to have an access to telecasting has
limitations on account of the use of the public property,
viz., the airwaves, involved in the exercise of the right
and can be controlled and regulated by the public authority.
This limitation imposed by the nature of the public property
involved in the use of the electronic media is in addition
to the restrictions imposed on the right to freedom of
speech and expression under Article 19 [2] of the
Constitution.
[iii] The Central Government shall take immediate steps to
establish an independent autonomous public authority representative of all sections and interests in the society to
control and regulate the use of the airwaves.
[iv] Since the matches have been telecast pursuant to the
impugned order of the High Court, it is not necessary to
decide the correctness of the said order.
[v] The High Court ’will now apportion between the CAB and
the DD the revenues generated by the advertisements on T.V.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 65 of 109
during the telecasting of both the series of the cricket
matches, viz., the Hero Cup, and the International Cricket
Matches played in India from October to December 1994, after
hearing the parties on the subject.
125. The civil appeals are disposed of accordingly.
126. In view of the disposal of the civil appeals, the
writ petition filed by the Cricket Association of Bengal
also stands disposed of accordingly.
185
B.P. JEEVAN REDDY, J.
127. Leave granted in Special Leave Petitions.
128. While I agree broadly with the conclusions arrived
at by my learned brother Sawant,J. in Para 24 of his
judgment, I propose to record my views and conclusions on
the issues arising in these matters in view of their farreaching importance.
129. Cricket is an interesting game. Radio, and more
particularly the television has made it the most popular
game in India. It has acquired tremendous mass appeal.
Television has brought the game into the hearths and homes
of millions of citizens across the country, enhancing its
appeal several-fold. Men, women and children who had no
interest in the game earlier have now become its ardent fans
- all because of its broadcast by radio and television.
This has also attracted the attention of business and
commerce. They see an excellent opportunity of advertising
their products and wares. They are prepared to pay huge
amounts therefor. The cricket clubs which conduct these
cricket matches have come to see an enormous opportunity of
making money through these matches. Previously, their
income depended mainly upon the ticket money. Now, it
probably does not count at all. The real income comes from
the advertisements both in-stadia as well as the spot
advertisements over radio and television. The value of instadia advertisement has increased enormously on account of
its constant exposure on television during the progress of
the game. Lured by this huge revenues, organisers of these
events now propose to sell the broadcasting rights used
compendiously to denote both radio
and television rights - of these events to the highest
bidder, be he foreign agency or a local one. They find that
Doordarshan is not in a position to or willing to pay as
much as the foreign agencies are. Accordingly, they have
sold these rights to foreign agencies. But - and here lies
the rub - broadcasting the event, particularly telecasting,
requires import, installation and operation of certain
equipment by these foreign agencies for which the law
(Indian Telegraph Act) requires a prior permission - licence
- to be granted by Government of India. Earlier, they
wanted uplinking facility too through Videsh Sanchar Nigam
Ltd., a Government of India-owned company. Now they
suggest, it may not be necessary. They say, they can uplink
directly from their earth station installed, or parked, as
the case may be, near the playing field to their designated
communication satellite which will beam it back to earth The
revolution in communications/ information technology is
throwing up new issues for the courts to decide and this is
one of them.
130. The Doordarshan says that all these years it has
been telecasting the cricket events in India and has helped
it popularise. So also is the plea of All India Radio
(AIR). They are Government agencies - departments of
Government. AIR and Doordarshan enjoy a monopoly in this
country in the matter of broadcasting and telecasting. They
cannot think of any other agency doing the same job. Theyhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 66 of 109
are not prepared to reconcile themselves to any other
agency, more particularly, a foreign agency being invited to
broadcast/ telecast these events and they themselves being
asked to negotiate and purchase these rights from such
foreign agencies. They say, they alone should be allowed to
telecast and broadcast these events; that they alone must
act as the ’host broadcaster’, which means they alone shall
generate the host broadcasting signal, which the interested
foreign agencies can purchase from them. They are, of
course, not prepared to pay as much amounts as the foreign
agencies. They are seeking to keep away the foreign
agencies with the help of the legal provisions in force in
this country. If they are successful in that, it is
obvious, they may - they can - dictate terms to the
organisers of these events. If they cannot, the organisers
will be in a position to dictate their terms. But here
again, there is another practical, technological, problem.
The foreign agencies do beam their programmes over Indian
territory too, but for receiving these programmes you
require - period - a dish antenna, which costs quite a bit.
Our TV sets cannot receive these programmes through the
ordinary antenna. Doordarshan alone has the facility of
telecasting programmes which can be received through
ordinary antennae. Millions in this country, who arc deeply
interested in the game, cannot afford these dish antennae
but they want to watch the game and that can be provided
only by the Doordarshan. And this is its relevance.
Doordarshan says, if the organisers choose to sell their
telecasting rights to a foreign agency, they would have
nothing to do with the event. They would not telecast it
themselves. If the foreign agencies can telecast them, well
and good - they can do so in the manner they can, but
Doordarshan would not touch the event even by a long bargepole. But, the Doordarshan complains, they are being
compelled by the courts to telecast these events in public
interest; such orders have been passed in writ petitions
filed by individuals or groups of individuals purporting to
represent public interest; the
1995 (2)
Doordarshan is thus made to lose at both ends - and the
organisers are laughing all the way; telecasting an event
requires good amount of preparation; advertisements have got
to be collected well in time; it cannot be done at the last
minute; without advertisements, telecasting an event results
in substantial loss to public exchequer - it says. These
are the problems which have given rise to these appeals and
writ petitions. They raise inter alia grave constitutional
questions touching the freedom of speech and expression
guaranteed by Article 19(1)(a) of the Constitution. The interpretation of Section 4(1) of the Indian Telegraph Act,
the right to establish private broadcasting and telecasting
facilities/ stations - in short, the, whole gamut of the law
on broadcasting and telecasting has become involved in the
issues arising herein.
FACTUAL CONSPECTUS-
131. Cricket Association of Bengal (CAB) organised an
international cricket tournament under the name and style of
"Hero Cup Tournament" to commemorate and celebrate its
diamond jubilee celebrations. Apart from India, national
teams of West Indies, South Africa, Sri Lanka and Zimbabwe
to participate though the national team of Pakistan withdrew
therefrom having agreed to participate in the first
instance. The Hero Cup Tournament comprised several one day
matches and its attraction was not confined to India but to
all the cricket loving countries which, in effect, means allhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 67 of 109
the commonwealth countries. The tournament was to be held
during the month of November, 1993. Until 1993, Doordarshan
was acting as the host broadcaster in respect of all the
cricket matches played in India. It
187
generated the ’host broadcaster signal’, which signal could
be assigned or sold to foreign television organisations for
being broadcast in their countries. However, an exception
was made by the Government of India - for reasons we do not
know - in respect of an earlier tournament; a foreign agency
was permitted to telecast the matches in addition to
Doordarshan. This exception appears to have set a
precedent. On March 15, 1993 the Cricket Association of
Bengal wrote to Doordarshan asking it to send their detailed
offer which could be any one of the two alternatives
mentioned in the letter. The two alternatives mentioned
were: "(a) that you (Doordarshan) would create ’host broadcaster signal’ and also undertake live telecast of all the
matches in the tournament or (b) that’any other party may
create the ’host broadcaster signal’ and you would only
purchase the rights to telecast in India." The Doordarshan
was requested to clearly spell in their offer the royalty
amount they were willing to pay. It was further made clear
that "in either case it may also please to noted that
foreign T.V. rights will be retained by this association".
The letter also suggested the. manner in which and by which
date the royalty amount was to be paid to it. The offer
from Doordarshan was requested to be sent by March 31, 1993.
On March 18, 1993 Doordarshan wrote to CAB asking it to send
in writing the amount it expects as rights’ fee payable to
it for granting exclusive telecasting rights "without the
Star T.V. getting it". On March 19, 1993, CAB wrote to
Doordarshan stating that "we are agreeable to your creating
the Host Broadcaster Signal and also granting you exclusive
rights for India without the Star TV getting it. And we
would charge you US $ 800,000 (US Dollars Eight Hundred
Thousand only) for the same. We ’Will, however, reserve the
right to sell/licence right worldwide, excluding India and
Star TV. You would be under an obligation to provide the
picture and commentary, subject to the payment of your
technical fees". On March 31, 1993 Doordarshan replied back
stating that the exclusive rights for India without Star TV
getting it may be granted to Doordarshan at a cost of Rupees
one crore. Evidently, because no response was forthwith
coming from CAB, the Doordarshan sent a reminder on May 4,
1993. On May 12, 1993, CAB wrote to Doordarshan. By this
letter, CAB informed Doordarshan that they have now decided
"to sell/allot worldwide TV Rights for the tournament to one
party only, instead of awarding separate areawise and
companywise contracts". In view of this revised decision,
the CAB called upon Doordarshan to let them know whether
Doordarshan is in the deal and if so to submit its detailed
offer for worldwide TV rights by May 17, 1993. The
Doordarshan was given an option either to purchase TV rights
outright or to purchase TV rights on the basis of sharing of
rights fee. Even before receiving this letter of CAB dated
May 12, 1993, Doordarshan addressed a letter to CAB on May
14, 1993 stating that while Doordarshan is still committed
to its bid of Rupees one crore, there is speculation that
Pakistan may not participate in the tournament which would
adversely affect the viewership and commercials. In such an
eventuality, the Doordarshan said, it will have to re-think
its bid.
132. On June 18, 1993 Doordarshan sent a fax message to
CAB referring to the press reports that CAB has entered intohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 68 of 109
amendment with Transworld Image (TWI) for the
188
TV coverage of the said tournament and that, therefore,
Doordarshan has decided not to telecast the tournament
matches organised by paying TWI. It stated that
Doordarshan is not prepared to enter Into any negotiation
with TWI to obtain TV rights for the event. will not
133. Months passed by and then on October 18, 1993, CAB
wrote a detailed letter to Doordarshan. In this letter, CAB
stated that though they were expecting an offer Doordarshan
was offering only a sum of Rupees one crore and that they
have received offers from agencies abroad including TWI
which were much higher than Rupees two crores and that too
in foreign exchange. Since Doordarshan was not interested
in increasing its offer, the letter stated, CAB entered into
a contract with TWI for the telecast of matches. Even so,
the letter stated, the CAB is still keen that Doordarshan
comes forward to telecast the matches since it does not wish
to deprive 800 millions people of this country and that
accordingly they have made TWI agree for co-production with
Doordarshan. It was also stated that Doordarshan should not
claim exclusive rights and the CAB would be at liberty to
sell the rights to Star TV. The letter further stated that
the Doordarshan has not been responding to their letters and
that meanwhile several foreign TV organisations and networks
have been approaching them to telecast their matches to the
Indian audience. The letter also referred to their
information received from some other sources that
Doordarshan is interested in acquiring the rights of tele
cast provided its allowed produce some matches directly and
that matches produced by TWI are made available to
Doordarshan without payment of technical fees. The letter
indicated the matches which Doordarshan would be allowed to
telecast directly and the matches which TWI was to telecast
directly. This offer was, however, subject to certain
conditions which inter alia included the condition that Doordarshan
will not pay access fee to CAB but shall allow four
minutes’ advertising time per hour 9i.e. a total of twenty
eight minutes in seven hours) and that CAB will be at
liberty to sell such time slots to advertisers and receive
the proceeds therefor by itself.
134. On October 27, 1993 Doordarshan replied that they are
not interested in the offer made by CAB in its letter dated
October 18, 1993. They stated that they have never agreed
to any joint production with TWI. On October 29, 1993, CAB
again wrote to Doordarshan expressing their regret at the
decision of the Doordarshan conveyed in their letter dated
September 27, 1993 and stated.......... purely in deference
to your sensitivity about taking a signal from TWI, CAB
would be quite happy to allow you production of your own
picture of matches; you may like to buy rights and licence
from CAB, at a price to be mutually agreed upon. We would
also like to clarify that these rights will be on nonexclusive basis for Indian territory". Doordarshan’s
response was requested at the earliest. On October 30,
1993, Doordarshan confirmed its message sent that day
expressing their refusal to pay any access fee to CAB and
stating further that if Doordarshan has to telecast the
matches live, CAB has to pay technical charges/ production
fee at the rate of Rupees five lacs per match and that
Doordarshan shall have exclusive rights for the signal
generated. There was a further exchange of letters, which
it is unnecessary to refer.
189
135. While the above correspondence was going onhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 69 of 109
between CAB and Doordarshan, the CAB applied for and obtained the following permissions from certain departments.
They are:
(a) On September 2, 1993, the Government of India, Ministry
of Human Resource Development (Department of Youth Affairs
and Sports) wrote to CAB stating that government has no
objection to the proposed visit of the cricket teams of the
participating countries in November 1993. The government
also expressed its no objection to provide the conversion
facility for guarantee money and prize money for foreign
players subject to a particular cell’ing.
(b) Videsh Sanchar Nigam Limited (VSNL) indicated its
charges for providing uplinking facility to INTELSAT and
accepted the said charges when paid by the CAB/TWI.
(c) On October 13, 1993 the Government of India, Ministry
of Home Affairs wrote to CAB expressing its no objection to
the filming of cricket matches and to the use of walkietalkie sets in the playground during the matches. It also
expressed its no objection in principle to the production
and technical staff of TWI visiting India.
(d) On October 20, 1993, the Department of
Telecommunications addressed a letter to the Central Board
of Excise and Customs expressing its no objection to temporary import of electrical production equipment required
for transmission of the said matches between November 7-27,
1993 subject to the organisers coordinating with wireless
planning committee for frequency clearance and also with
VSNI.
(e) On November 2, 1993, the Ministry of Finance
(Department of Revenue) addressed a letter to Collector of
Customs, Sahar Airport, Bombay intimating him of the grant
of exemption from duty for the temporary import of
electrical equipment by TWI, valued at Rs.4.45 crores
subject to certain conditions.
136. Inasmuch as no agreement could be arrived at
between CAB and Doordarshan, the Department of Telecommunications addressed a letter to VSNL on November 3, 1993
(on the eve of the commencement of the matches) to the following effect: "Refer to your letter No. 18IP(TWI)/93-TG
dated 13.10.1993 and discussion of Shri V.Babuji with W.A.
on 2.11.1993 regarding uplink facility for telecasting by
TWI of C.A.B. Jubilee Cricket matches. You are hereby
advised that uplink facilities for this purpose should NOT
repeat NOT be provided for T.W.I. This has the approval of
Chairman (TC) and Secretary, DoT. Kindly confirm receipt."
The VSNL accordingly intimated CAB of its inability to grant
uplinking facility and also returned the amount received
earlier in that behalf
137. Faced with the above developments, the CAB approached
the Calcutta High Court by way of a writ petition being Writ
Petition No.F.M.A.T.Nil of 1993 asserting that inspite of
their obtaining all permissions including the TV uplinking
facilities from VSNL as contemplated by the proviso to
Section 4 of the Indian Telegraph Act, Doordarshan - and
other governmental authorities at the instance of
Doordarshan - are seeking to block and prevent the telecast
of the matches by TWI.
190
The reliefs sought for in the writ petition are the
following:
(1)A mandamus commanding Respondents 1, 3 and 4 (Union of
India, Director General, Information and Broadcasting and
Director General, Doordarshan) and other respondents to
ensure uninterrupted and unobstructed telecast and broadcast
of Hero Cup tournament between November 1028, 1993 and tohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 70 of 109
take all appropriate measures for such telecast and
broadcast.
(ii)A mandamus to the respondents to provide all
arrangements and facilities for telecast and broadcast of
the Hero Cup tournament by the appointed agencies of the
petitioners.
(iii)A mandamus restraining the respondents from- seizing,
tempering with, removing or dealing with any equipment
relating to transmission telecast and broadcast of the
said tournament; and
(iv)Restraining the respondents from interfering or
disrupting in any manner the live transmission and broadcast
of the said tournament by the petitioners and their agents.
138. A learned Single Judge of the Calcutta High Court heard
the matter on November 8, 1993. The learned Judge directed
the matter to come up on the next day with a view to enable
the Advocate for the Union of India to obtain necessary
instructions in the matter. At the same time, he granted an
interim order of injunction in terms of prayers (i) and (j)
in the writ petition effective till the end of the next day.
Prayers (i) and (j) in the writ petition read as follows:
(i) Interim order commanding the
Respondents, their servants, agents, employees
or otherwise to provide all adequate
assistance and cooperation to the Petitioners
and/or their appointed Agency for free and
uninterrupted telecast and broadcast of HERO
CUP TOURNAMENT between 10th November, 1993 and
28th November, 1993;
(i) An interim order of injunction restrain-
ing the Respondents their servants, agents,
employees and others from tempering with,
removing, seizing or dealing with any
equipments relating to transmission telecast
and broadcast of HERO CUP TOURNAMENT belonging
to and/or their appointed agency in any manner
whatsoever.
139. The order made it clear that the said order shall not
prevent Doordarshan from telecasting any match without
affecting any arrangement arrived at between CAB and TWI.
140.On the next day, i.e., November 9, 1993, the learned
Single Judge heard the Advocate for the Union of India but
declined to vacate the interim order passed by him on the
previous day. He further restrained the respondents to the
writ petition from interfering with the frequency lines
given to the Respondent No.10, i.e., TWI as per request made
by VSNL to SAT in view of the fact that VSNL had accepted
the proposal of CAB and TWI and had also received the fees
therefor. On November 11, 1993, the learned Judge passed
another order, on the representation of the learned counsel
for the writ petitioners, that the equipment brought by TWI
for the purpose of production of transmission and
telecasting of cricket matches which was seized by the
Bombay customs authorities, allegedly under the instructions
of the Ministry of Telecommu-
191
nications and Ministry of Information and Broadcasting, be
released. The learned Judge directed that all the
governmental authorities including the customs authorities
shall act in accordance with the interim orders dated 8/9th
November, 1993. Meanwhile, it appears, certain individuals
claiming to be interested in watching cricket matches on
television filed independent writ petitions for a direction
to the Doordarshan to telecast the matches. The learned
Judge expressed the opinion that by their internal fighthttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 71 of 109
between Respondents 1 to 5 on one hand and Respondent No.6
(reference is to the ranking in the writ petition) on the
other, millions of viewers in India are deprived of the
pleasure of watching the matches on television. He then
referred to the representation that at the instance of
Doordarshan and others, All-India Radio (AIR) too has
stopped broadcasting the matches. The learned Judge
observed that there is no reason for AIR to do so and
accordingly directed the Union of India and others including
the Ministry of Information and Broadcasting to broadcast
the remaining cricket matches on AIR as well.
141. Aggrieved by the orders of the learned Single
Judge aforementioned, the Union of India and other
governmental agencies filed a writ appeal (along with an
application for stay) which came up for orders on November
12, 1993 before a Division Bench of the Calcutta High Court.
It was submitted by the learned counsel for the Union of
India that though the Doordarshan is very much keen to
telecast the matches, the CAB has really created problems by
entering into an agreement with TWI. He submitted that
under Section 4 of the Telegraph Act, 1885, the Central
Government has the exclusive provilege of establishing,
maintaining and working telegraph and that the definition of
the expression "telegraph" includes telecast. He submitted
that neither CAB nor TWI have obtained any licence or
permission as contemplated by the proviso to Section 4(1) of
the Indian Telegraph Act and, therefore, TWI cannot telecast
the matches from any place in Indian territory. After
referring to the rival contentions of the parties and the
correspondence that passed between them, the Division Bench
observed that there were two dimensions to the problem
arising before them, viz., (i) the right to telecast by
Doordarshan within India and (2) right of TWI to telecast
outside India for viewers outside India. Having regard to
the urgency of the matter and without going into the merits
of the rival contentions, and keeping in view the interest
of millions of viewers, the Division Bench observed: "we
record, as Doordarshan is inclined to telecast the matches
for the Indian viewers on receipt of Rs.5 lakhs per match
and to enjoy the exclusive right of signalling within the
country being the host broadcaster, we direct the CAB to pay
immediately a sum of Rs.5 lakhs per match for this purpose
and the collection of revenue on account of sponsorship or
otherwise in respect of 28 minutes which is available for
commercial purpose be realised by the Doordarshan on
condition that such amount shall be kept in a separate
account and shall not be dealt with and dispose of the said
amount until further orders" to be passed in the said writ
appeal. The Doordarshan was accordingly directed to
immediately start telecasting the matches. The Bench then
took up the question whether TWI is entitled to telecast the
matches from Indian territory. It noted that no formal
order as required under the proviso to Section 4(1)
192
of the Telegraph Act has been granted in favour of either
CAB or TWI. Purporting to take notice of the national and
international impact of the issue, the Bench directed the
5th appellant before them, viz.., the Secretary, Ministry of
Telecommunications, Government of India "to consider the
facts and circumstances of the case clearly suggesting that
there had already been an implied grant of permission, shall
grant a provisional permission or licence without prejudice
to the rights and contentions of the parties in this appeal
and the writ application and subject to the condition that
Respondent No.6 (5th appellant in appeal) in the writhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 72 of 109
application will be at liberty to impose such reasonable
terms and conditions consistent with the provision to
Section 4(1) of the Indian Telegraph Act having regard to
the peculiar facts and circumstances of the case." (emphasis
added). The Secretary was directed to decide the said
question within three days from the date of the said order
after hearing all the parties before the Division Bench, if
necessary,
142. On November 14, 1993, the matter was again taken up by
the Division Bench, on being mentioned by the parties. The
first problem placed before the Bench was placement of
cameras. The Doordarshan authorities complained that they
have not been given suitable place for the purpose of
telecasting. Doordarshan further submitted that there can
only be one signalling from the field and that in terms of
the orders of the Division Bench, Doordarshan should be the
host broadcaster and TWI should take the signal from
Doordarshan. This request was opposed by the CAB and TWI.
The Bench directed that according to their earlier order the
TWI is entitled to telecast outside the country and to send
their signal accordingly and in case the signalling is
required to be made by TWI separately, the necessary
permission should be given by the Doordarshan and other
competent authorities therefor. Regarding placement of
cameras, certain directions were given.
143. Aggrieved by the orders of the Division Bench dated
12/14th November, 1993, the Secretary, Ministry of Information and Broadcasting, Government of India, Director
General, Doordarshan and Director General, Akashvani filed
two Special Leave Petitions in this court, viz.,
S.L.P.(C)Nos.18532-33 of 993. Simultaneously, CAB filed an
independent writ petition in this court under Article 32 of
the Constitution being W.P.(C) No.836 of 1993. The prayers
in this writ petition are practically the same as are the
prayers in the writ petition filed in the Calcutta High
Court. The additional prayer in this writ petition related
to release of equipment imported by TWI which was detained
by customs authorities at Bombay. On November 15, 1993,
this court directed the Secretary, Ministry of
Telecommunications, Government of India to hold the meeting,
as directed by the Calcutta High Court, at 4.30P.M. on that
very day (November 15, 1993) and communicate the decision
before 7.30P.M. to TWI or its counsel or to CAB or its
counsel. The customs authorities were directed to release
the equipment forthwith. The TWI was, however, restrained
from using the equipment for telecast purpose unless a
licence is issued by the Secretary, Ministry of
Telecommunications in that behalf.
144. Pursuant to the orders of this court, Shri
N.Vithal, Chairman, Telecommunications and Secretary, DoT
passed orders on
193
November 15, 1993 which were brought to the notice of this
court on that very day. This court stayed the said order to
the extent it imposed a condition that TWI will get their
signal from Doordarshan for uplinking through VSNL. The TWI
was permitted to generate their own signal by focussing
their cameras on the ground. It was observed that the said
order shall not be treated as a precedent in future since it
was made in the particular facts and circumstances of that
case.
145. The matches were telecast in accordance with the
directions given by this court and the High Court but the
Special Leave Petitions and the Writ Petition remained
pending. While so, a new development took place in 1994http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 73 of 109
which now requires to be mentioned.
146. In connection with World Cup Matches scheduled for
the year 1996, certain correspondence took place between
Doordarshan and the Board of Cricket Control, India (BCCI).
While the said correspondence was in progress, each side reaffirming their respective stand, BCCI arranged certain
international cricket matches to be played between the
national teams of India, West Indies and New Zealand during
the months of October-December, 1994. BCCI entered into an
agreement with ESPN, a foreign agency, for telecasting all
the cricket matches organised by BCCI in India for the next
five years for a consideration of US $30 million.
Doordarshan was totally excluded. ESPN in turn made an
offer to Doordarshan to purchase the right to telecast the
matches in India from ESPN at a particular consideration
which the Doordarshan declined.
147. On September 20, 1994, we commenced the hearing of
these matters. While the hearing was in progress, the BCCI
filed a writ petition, being Writ Petition No.628 of 1994,
for issuance of a writ, order or direction to the
respondents (Government of India and its various departments
and agencies) to issue and grant the necessary licences
and/or permissions in accordance with law to BCCI or its
appointed agencies for production, transmission and live,
telecast of the ensuing international cricket matches to be
played during the months of October-December, 1994 and to
restrain the Doordarshan and other authorities from
interfering with or obstructing in any manner the
transmission, production, uplinking and telecast of the said
matches. This writ petition was occasioned because the authorities were said to be not permitting ESPN to either
bring in the necessary equipment or to telecast the matches
from the Indian territory. The said writ petition was
withdrawn later and Interlocutory Applications filed by the
BCCI in the pending special leave petition and writ petition
seeking to be impleaded in those matters and for grant of
reliefs similar to those prayed for in Writ Petition No.628
of 1994. Since the hearing was yet to be concluded, we
passed certain orders similar to those passed by this court
earlier - confined, of course, to the matches to be played
during the months of October-December, 1994.
CONTENTIONS URGED BY THE PARTIES AND THE QUESTIONS ARISING
FOR CONSIDERATION.
148. The CAB and BCCI have taken a common stand, were
represented by the same counsel and have also filed common
written submissions. It is not possible to reproduce all
their contentions as put forward in their written
submissions because
194
of the number of pages they run into. It would suffice if I
set out their substance. The submissions are:
(a) CAB and BCCI are non-profit-making sporting
organisations devoted to the promotion of cricket and its
ideals. They organise international cricket tournaments and
series from time to time which call for not only good amount
of Organisation but substantial expense. Payments have to
be made to the members of the teams participating.
Considerable amount of money has to be expended on the
training of players and providing infrastructural facilities
in India. All this requires funds which have to be raised
by these organisations on their own. Accordingly, CAB
entered into an agreement with TWI for telecasting the Hero
Cup Tournament matches to be played in the year 1993. The
necessary permissions were applied for and granted by the
Ministries of Home, Defence, Human Resource Development andhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 74 of 109
Telecommunications. The Ministry of Telecommunications/VSNL
accepted the monies for the purpose of providing uplinking
facilities, which does amount to implied grant of permission
under the proviso to Section 4(1) of the Telegraph Act. In
any event, the acceptance of the monies made it obligatory
upon the ministries to grant the said licence. It is only
on account of the interference and lobbying by Doordarshan
and Ministry of Information and Broadcasting that the other
ministries went back and refused to permit the telecast.
The action of the Doordarshan and the Ministry of
Information and Broadcasting is malafide, unreasonable and
authoritarian besides being illegal.
(b) The game of cricket provides entertainment to public.
It Is a form of expression and is, therefore, included
within the freedom of speech and expression guaranteed by
Article 19(1)(a) of the Constitution. This right includes
the right to telecast and broadcast the matches. This right
belongs to the organiser of the matches which cannot be
interfered with by anyone. The organiser is free to choose
such agency as it thinks appropriate for telecasting and
broadcasting its matches. The Doordarshan or the Ministry
of Information and Broadcasting can claim no right
whatsoever to telecast or broadcast the said matches. If
they wish to do so, they must negotiate with the organiser
and obtain the right. They have no inherent right, much
less a monopoly, in the matter of telecasting and
broadcasting these matches. It is not their events. If the
organisers, CAB and BCCI herein, choose to entrust the said
rights to a foreign agency, such foreign agency is merely an
agency of the organisers and the mere fact that it happens
to be a foreign agency is no ground for depriving the
organisers, who as Indian citizens, are entitled to the
fundamental right guaranteed by Article 19(1)(a). The said
right can be restricted or regulated only by a law made with
reference to the grounds mentioned in clause (2) of Article
19 and on no other ground.
(c) Section 4 of the Indian Telegraph Act must be
understood and construed in the light of Article 19(1)(a).
So read and understood, it is only a regulatory provision.
If a person applies for a licence for telecasting or
broadcasting his speech and expression - in this case the
game of cricket - the appropriate authority is bound to
grant such licence unless it can seek refuge under a law
made in terms of clause (2) of Article 19. The appropriate
authority cannot also impose such conditions as would
195
nullify or defeat the guaranteed freedom. The conditions to
be imposed should be reasonable and relevant to the grant.
(d) Doordarshan or AIR has no monopoly in the matter of
telecasting/broadcasting. Radio and television are only a
medium through which freedom of speech and expression is
expressed. Article 19(2) does not permit any monopoly as
does clause (6) in the matter of Article 19(1)(g). Section
4, which contemplates grant of telegraph licences is itself
destructive of the claim of monopoly by Doordarshan/AIR.
(e) Right to disseminate and receive information is a part
of the right guaranteed by Article 19(1)(a). Televising the
cricket match is a form of dissemination of information.
The mere fact that the organisers earn some income from such
activity does not make it anytheless a form of expression.
It has been held repeatedly by this court in the matter of
freedom of press that the mere fact that publication of
newspaper has also certain business features is no ground to
treat it as a business proposition and that it remains an
activity relatable to Article 19(1)(a). Business activityhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 75 of 109
is not the main but only an incidental activity of
CAB/BCCI,. the main activity being promotion of cricket. It
follows that whenever any citizen of this country seeks to
exercise this right, all necessary permissions have to be
granted by the appropriate authorities. The only ground
upon which it can be refused is with reference to law made
in the interest of one or the other ground mentioned in
Article 19(2) and none else.
(f) With the technological advance and the availability of
a large number of frequencies and channels, being provided
by the increasing number of satellites, the argument of
limited frequencies and/or scarce resource is no longer
tenable. The BCCI does not want allotment of frequency -
not even the uplinking facility, since it has the facility
to uplink directly from the earth station to Gorizon-Russian
satellite with which ESPN has an arrangement All that the
BCCI wants is a licence/permission for importing and
operating the station, wherever the match is played. In
such an eventuality, Doordarshan does not come into picture
at all. Of course, in connection with Hero Cup matches, the
CAB wanted uplinking facility for the reason that it wanted
uplinking to INTELSAT, which is provided only through VSNL.
If an organiser does not want uplinking to INTELSAT, he need
not even approach VSNL. As a matter of fact, major networks
in United States have their own satellites.
149. On the other hand, the submissions on behalf of the
Doordarshan and the Ministry of Information and Broadcasting
are the following:
(i) The CAB or for that matter BCCI did not even apply for
a licence under the proviso to Section 4(1) nor was such licence granted by the appropriate authority at any time or on
any occasion. The grant of permission by other departments
including the collection of fees by VSNL does not amount to
and cannot take the place of licence under the proviso to
Section 4(1). In the absence of such a licence, the
CAB/BCCI or their agents had no right to telecast or
broadcast the matches from the Indian territory. The
argument of implied permission - or the alternate argument
that the authorities were bound to grant such permission -
is misconceived, more par-
196
ticularly, in the absence of even an application for grant
of licence under Section 4 of the Telegraph Act.
(ii) The Calcutta High Court was not right in giving the
directions it did. Particularly the direction given in its
order dated November 12, 1993 to the Secretary, Ministry of
Telecommunications, Government of India, was contrary to
law. While directing the Secretary to consider the facts
and circumstances of the case, the High Court expressly
opined that there was already an implied grant of permission. After expressing the said opinion, the direction to
consider was a mere formality and of little significance.
The charge of malafides and arbitrary and authoritarian
conduct levelled against Doordarshan and the Ministry of
Information and Broadcasting is wholly unfounded and
unsustainable in the facts and circumstances of the case.
In the absence of a licence under Section 4 of the Telegraph
Act, VSNL could not have granted uplinking facility and it
is for that reason that the Department of Telecommunications
wrote its letter dated November 3, 1993 to VSNL.
(iii) Realising the lack of coordination among the various
ministries concerned in granting permission in such a
matter, the Government of India has since taken a policy
decision in the meeting of the Committee of Secretaries held
on November 12, 1993. It has been decided that satellitehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 76 of 109
uplinking from the Indian soil should be within the
exclusive competence of the Ministry of Information and
Broadcasting/ Department of Space/Department of Telecommunications and that similarly the telecast of sports
events shall be within the exclusive purview of the
Doordarshan/Ministry of Information and Broadcasting who in
turn could market their rights to other par-ties on occasion
in whole or in part. It has been further decided that in
respect of any such event, the organiser shall contact the
specified nodal ministry which in turn will coordinate with
all other concerned departments. In short, what may be
called a ’single window system’ has been evolved which is
indeed in the interest of organisers of such events.
(iv) So far as the contention based upon Article 19(1)(a) is
concerned, the contentions of CAB/BCCI are misleading and
over-simplistic. The right guaranteed by Article 19(1)(a)
is not limited to organisers of such sports events. The
said right is guaranteed equally to the broadcaster and the
viewers. Among them, the right of the viewers is the more
important one. The decisions rendered by this court in the
matter of freedom of press are not strictly relevant in the
matter of broadcast/telecast. Telecasting a sports event is
distinct from the event itself It is evident that the CAB/
BCCI are seeking to earn as much as possible by selling the
telecasting rights. It is nothing but commerce and an
activity solely relatable to Article 19(1)(g) and not to
Article 19(1)(a). Inviting bids from all over the world and
selling the telecast rights to the highest bidder has
nothing to do with Article 19(1)(a). In any event, the
predominant element in such activity is that of business.
The interest of general public is, therefore, a relevant
consideration in such matters. The public interest demands
that foreign agencies should not be freely permitted to come
and set up their telecasting facilities in India in an
unrestricted fashion. The occasion for inviting foreign
agencies may possibly arise only if Doordarshan and AIR
refuse to telecast or
197
broadcast the event which they have never done. The
Doordarshan was and is always ready to undertake the
telecasting on reasonable terms but the CAB and BCCI were
more interested in deriving maximum profit from the event.
Doordarshan cannot certainly compete with foreign agencies
who are offering more money not merely for obtaining the
right to telecast these events but with the real and
ultimate object of gaining a foothold in the Indian
telecasting scene. Through these events, the foreign
telecasting organisations, particularly ESPN, are seeking
entry into Indian market and it is for this reason that they
are prepared to pay more. Their interest is something more
than mere commercial.
(v)The present situation is that the Doordarshan and AIR has
got all the facilities of telecasting and broadcasting the
events in India. They have been doing it for over the last
several decades and they have the necessary infrastructure.
The Doordarshan is taking all steps for updating its
equipment and for training its technicians to handle the
latest equipment. It is also entering into tic,-ups with
certain foreign agencies for the purpose. They have always
been prepared for any reasonable terms. Both Doordarshan
and AIR are agencies of the State. Until recently, 97% of
the telecasts made by Doordarshan did not earn any income.
They only involved expense. Its income was derived mainly
from the remaining three per cent of its activities
including sports events like cricket. Recently, there hashttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 77 of 109
been a slight change in policy but the picture largely
remains the same. There is nothing illegitimate or
unreasonable in Doordarshan seeking to earn some money in
the matter of telecast of such events.
(vi)The very nature of television media is such that it
necessarily involves the marshaling of the resource for the
greatest public good. The state monopoly is created as a
device to use the resource for public good. It is not
violative of the right of free speech so long as the
paramount interest of the viewers is subserved and access to
media is governed by the ’fairness doctrine’. Section 4 of
the Telegraph Act cannot be faulted on any ground. Indeed,
in none of the petitions filed by the CAB/BCCI has the
validity of the monopoly of Doordarshan questioned. If the
argument of the CAB/BCCI is accepted it would mean a
proliferation of television stations and telecasting
facilities by all and sundry, both domestic and foreign,
which would not be in the interest of the country. Indeed,
the other side has not placed any material to show that such
free grant of licences would serve the public interest.
(vii)Section 4 of the Telegraph Act is in no way
inconsistent with the monopoly of Doordarshan/AIR. Indeed,
it supports it. The American decisions are not really
relevant to the Indian context. The availability of more or
unlimited number of frequencies or channels is no ground to
permit free and unrestricted import, establishment and
operation of Radio/Television stations, earth stations or
other such equipment.
150. In the light of the contentions advanced, the following
questions arise for consideration:
1.(a) Whether a licence or permission can be deemed to have
been granted to CAB under the proviso to Section 4 of the
Indian Telegraph Act, 1885 for telecasting the Hero Cup
Tournament matches played
198
in November, 1993?
(b) If it is found that there was no such permission, was
it open to the Calcutta High Court to give the impugned
directions?
(c) Whether the charge of malafides and arbitrary and
authoritarian conduct attributed to Doordarshan by CAB
justified?
2.(a) Whether organising a cricket match or other sports
event a form of speech and expression guaranteed by Article
19(1)(a) of the Constitution?
(b) If the question in clause (a) is answered in the
affirmative, the further question is whether the right to
telecast such event is also included within the right of
free speech and expression?
(c) Whether the organiser of such sports events can claim
the right to sell the telecasting rights of such events to
such agency as they think proper and whether they have the
right to compel the government to issue all requisite
permissions, licences and facilities to enable such agency
to telecast the events from the Indian soil? Does the right
in Article 19(1)(a) take in all such rights?
(d) If the organiser of sports does have the rights
mentioned in (c), whether the government is not entitled to
impose any conditions thereon except charging technical fees
or service charges, as the case may be?
3. Whether the impact of Article 19(1)(a) upon Section 4 of
the Telegraph Act is that. whenever a citizen applies for a
licence under the proviso to Section 4(1) it should be
granted unless the refusal can be traced to a law within the
meaning of Article 19(2)?http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 78 of 109
4. Whether the virtual monopoly existing in favour of
Doordarshan in the matter of telecasting from Indian soil
violative of Article 19(1)(a) of the Constitution?
ANSWERS TO THE QUESTIONS
QUESTION NO. 1:
151. The facts narrated in Part-II show that neither
CAB nor BCCI ever applied for a licence under the first
proviso to sub-section (1) of Section 4 of the Telegraph
Act. The permissions obtained from other departments, viz.,
from the Ministry of Human Resource, VSNL, Ministry of Home
Affairs, Ministry of Finance or the Central Board of Excise
and Customs cannot take the place of licence under Section
4(1). Indeed, this fact was recognised by the Division
Bench of the Calcutta High Court and it is for the said
reason that it directed the Secretary to the Telecom
Department to decide the question whether such licence
should be granted to CAB in connection with Hero Cup
matches. But while directing the Secretary to consider the
said question, it chose to make certain observations which
had the effect of practically foreclosing the issue before
the Secretary. The Division Bench observed that the Secretary should proceed on the assumption that there was an
implied grant of permission. As a matter of fact, the
Secretary was directed to grant the licence in so many
words, thus leaving no discretion in him to examine the
matter in accordance with law. It became an empty
formality. I am of the opinion that while asking the Secretary to decide the issue under proviso to
199
Section 4(1), his discretion and judgment could not have
been restricted or forestalled in the above manner. Be that
as it may, in pursuance of the said directions and the
directions of this Court - the Secretary passed certain
orders, the legality of which has now become academic for
the reason that both the events, viz., the Hero Cup matches
as well as the recent international matches (OctoberDecember, 1994) are over. The only thing that remains to be
considered is whether the charge of malafides and arbitrary
and authoritarian conducted attributed to the Doordarshan by
CAB and BCCI is justified. Firstly neither the CAB nor its
foreign agent had applied for or obtained the
licence/permission under Section 4(1). The permissions
granted by other departments are no substitute for the
licence under the proviso to Section 4(1). ’Mere is nothing
to show that seizure of imported equipment by customs
authorities was at the instance of Doordarshan; it appears
to be for non-compliance with the requirements subject to
which permission to import was granted. Secondly, this
issue, in my opinion, cannot be examined in isolation but
must be judged in the light of the entire relevant context.
The Doordarshan did enjoy monopoly of telecasting in India
which is the product of and appears to be sustained by
Section 4(1) of the Telegraph Act. There was no occasion
when a foreign agency was allowed into India without the
consent of or without reference to Doordarshan to telecast
such events. All these years, it was Doordarshan which was
telecasting these matches. On one previous occasion, a
foreign agency was allowed but that was by the Doordarshan
itself or at any rate with the consent of and in cooperation
with the Doordarshan. It is for this reason that the
Doordarshan was asserting its exclusive right to telecast
the event taking place on Indian soil and was not prepared
to purchase the said right from a foreign agency to whom the
CAB and BCCI sold all their rights. It is also worth
noticing that neither CAB nor BCCI or for that matter anyhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 79 of 109
other sports organisation had ever before invited a foreign
agency to telecast or broadcast their events - at any rate,
not without the consent of Doordarshan. The agreement with
TWI entered into by CAB and the agreement with ESPN entered
into by the BCCI were unusual and new developments for all
concerned. Like the bureaucracy everywhere, the Indian
bureaucracy is also perhaps slow in adjusting to the
emerging realities, more particularly when they see a threat
to their power and authority in such developments. In the
circumstances, their objection to a foreign agency coming in
and telecasting such events without even obtaining a licence
under the proviso to Section 4(1) of the Telegraph Act
cannot be termed malafide or arbitrary. So far as the
charge of authoritarianism is concerned, it is equally
unsustainable for the reason that the CAB/ BCCI had no legal
right nor any justification in insisting upon telecasting
their events through foreign agencies without even applying
for and/or obtaining a licence required by law. The
correspondence between them shows that each was trying to
get the better of the other; it was like a game of fencing.
In my opinion, therefore, the charge of malafides or for
that matter, the charge of arbitrary or authoritarian
conduct levelled against the Doordarshan and/or other
governmental authorities is unacceptable in the facts and
circumstances of this case.
QUESTION NOS. 2.3 AND 4:
152. The contentions of Sri Kapil Sibal,
200
learned counsel for the BCCI/CAB have been set out
hereinbefore. What do they really mean and imply? It is
this: the game of cricket provides entertainment to public
at large. The entertainment is organised and provided by
the petitioners. Providing entertainment is a form of
expression and, therefore, covered by Article 19(1)(a) of
the Constitution. Except in accordance with a law made in
terms of clause (2) of Article 19, no restriction can be
placed thereon. The organiser of the game has the right to
telecast and broadcast the game. None can stop it - neither
the Doordarshan nor AIR. The monopoly in favour of
Doordarshan and AIR is inconsistent with Article 19(1)(a) as
well as Section 4 of the Telegraph Act. If Section 4(1) is
construed as conferring or affirming such monopoly, it is
void and unconstitutional may fall foul of Article 19(1)(a).
The first proviso to Section 4(1) is bad for the added
reason that it or the Act does not furnish any guidance in
the matter of exercise of discretion conferred upon the
Central Government thereunder. The organiser of the Same is
free to choose such agency as he thinks appropriate for
telecasting and broadcasting the game - whether domestic or
foreign - and if the organiser asks for a licence under the
proviso to Section 4(1) for importing and operating the
earth station or other equipment for the purpose, it must be
granted. No conditions can be placed while granting such
permits except collection of technical fees. This in substance is the contention. It must be said at once that this
may indeed be the first decision in this country, when such
an argument is being addressed, though such arguments were
raised in certain European courts and the European Court of
Human Rights, with varying results as we shall indicate in a
little while.
153. There may be no difficulty in agreeing that a game
of cricket like any other sports event provides
entertainment - and entertainment is a facet, a part, of
free speech. [See Burstyn v. Wilson (96 L.Ed.1098)], subject
to the caveat that where speech and conduct are joined in ahttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 80 of 109
single course of action, the free speech values must be
balanced against competing societal interests. [Los Angeles
v. Preferred Communications (1986 - 476 U.S.488 = 90
L.Ed.2d.480)]. It attracts a large audience. But the
question is whether the organiser of the event can say that
his freedom of expression takes in the right to telecast it
from the Indian soil without any restrictions or
regulations. The argument really means this, I have a right
to propagate my expression, viz., the game, by such means as
I think appropriate, I may choose to have a television
station of my own or I may invite a foreign agency to do the
job. Whatever I wish, the State must provide to enable me
to propagate my game. I may make money in the process but
that is immaterial’. In effect, this is an assertion of an
absolute and unrestricted right to establish private radio
and television stations, since there is no distinction in
principle between having a mobile earth station (which beams
its programmes to a satellite via VSNL or directly to
another satellite which in turn beams it back to earth) and
a stationary television station. Similarly, there is no
distinction in law between a permanent telecasting facility
and a facility for a given occasion. Question is, is such a
stand acceptable within the framework of our Constitution?
(The question relating to interpretation of Section 4(1), 1
will deal with it separately.) I may clarify that I am
concerned herein with ’live telecast’ which requires the
telecast equipment to be placed at or near the field where
the
201
event is taking place, i.e., telecasting from the Indian
territory. This clarification is appended in view of the
contention urged that nothing prevents the organisers - 1 or
for that matter, anybody - from video recording the event
and then take the video cassette out of this country and
telecast it from outside stations. Undoubtedly, they can do
so. Only thing is that it will not be a live telecast and
it would also not be a telecast from the Indian soil.
154. Article 19(1)(a) declares that all citizens shall
have the right of freedom of speech and expression. Clause
(2) of Article 19, at the same time, provides that nothing
in sub-clause (1) of clause (1) shall affect the operation
of any existing law or prevent the State from making any
law, insofar 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 the
foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement of
an offence. The grounds upon which reasonable restrictions
can be placed upon the freedom of speech and expression are
designed firstly to ensure that the said right is not
exercised in such a manner as to threaten the sovereignty
and integrity of India, security of the State, friendly
relations with the foreign States, public order, decency or
morality. Similarly, the said right cannot be so exercised
as to amount to contempt of court, defamation or incitement
of an offence. Existing laws providing such restrictions
are saved and the State is free to make laws in future
imposing such restrictions. The grounds aforesaid are
conceived in the interest of ensuring and maintaining
conditions in which the said right can meaningfully ad
peacefully be exercised by the citizens of this country.
155. The freedom of speech and expression is a right given
to every citizen of this country and not merely to a few.
No one can exercise his right of speech in such a manner ashttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 81 of 109
to violate another man’s right of speech. One man’s right
to speak ends where the other man’s right to speak begins.
Indeed, it may be the duty of the State to ensure that this
right is available to all in equal measure and that it is
not hijacked by a few to the detriment of the rest. This
obligation flows from the preamble to our Constitution,
which seeks to secure. to all its citizens liberty of
thought, expression, belief and worship. State being a
product of the Constitution is as much committed to this
goal as any citizen of this country. Indeed, this obligation also flows from the injunction in Article 14 that "the
State shall not deny to any person equality before the law"
and the direction in Article 38(2) to the effect: "the
State, shall, in particular - endeavour to eliminate
inequalities in status, facilities and opportunities, not
only amongst individuals but also amongst groups of
people........ Under our Constitutional scheme, the State is
not merely under an obligation to respect the fundamental
rights guaranteed by Part-III but under an equal obligation
to ensure conditions in which those rights can be
meaningfully and effectively enjoyed by one and all.
156.The fundamental significance of this freedom has been
stressed by this Court In a large number of decisions and it
is unnecessary to burden this judgment with those decisions.
Freedom of speech and expression, it has been held
repeatedly, is
202
basic to and indivisible from a democratic polity. It
encompasses freedom of press. It includes right to impart
and receive information. The question now in issue is: does
it include the freedom to broadcast and telecast one’s
views, ideas and opinions and whether, if one wishes to do
so, is the State bound to provide all necessary licences,
permits and facilities therefor? This requires an
examination of the history of broadcasting and telecasting
in this country as well as in certain leading democracies in
the world. In this judgment, the expression "broadcasting
media" wherever used denotes the electronic media of radio
and television now operated by AIR and Doordarshan - and not
any other radio/TV services
INDIA:
157. Though several countries have enacted laws on the
subject of broadcasting, India has not. The Indian
Telegraph Act, enacted in 1885 (as amended from time to
time) is the only enactment relevant in this behalf Clause
(1) of Section 3 defines the expression "telegraph" in the
following words:
""Telegraph" means any appliance, instrument
material or apparatus used or capable of use
for transmission or reception of signs
signals,writing, images and sounds or
intelligence of any nature by wire, visual
or other electromagnetic emissions, Radio
waves or Hertzian waves, galvanic, electric or
magnetic means.
Explanation.- "Radio waves" or "Hertzian
waves" means electromagnetic waves of
frequencies lower than 3,000 giga-cycles per
second propagated in space without artificial
guide.
158. Sub-section (1) of Section 4 which occurs in Part-11
entitled "Privileges and Powers of the Government" confers
the exclusive privilege of establishing, maintaining and
working telegraphs In India upon the Central Government. At
the same time, the first proviso to sub-section empowers thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 82 of 109
Central Government itself to grant a licence on such
conditions and in consideration of such payments as it
thinks fit, to establish, maintain or work a telegraph
within any part of India. Section 4 may be set out for
ready reference:
"4.(1) Within India the Central Government
shall have the exclusive privilege of
establishing, maintaining and
working telegraphs:
Provided that the Central Government may grant
a licence, on such conditions and in
consideration of such payments as it thinks
fit, to any person to establish, maintain or
work a telegraph within any part of India:
Provided further that the Central Government
may, by rules made under this Act and
published in the Official Gazette, permit,
subject to such restrictions and conditions as
it thinks fit, the establishment, maintenance
and working-
(a) of wireless telegraphs on ships within
Indian territorial waters and on aircraft
within or above India, or Indian territorial
waters, and
(b) of telegraphs other Om wireless
telegraphs within any part of India.
(2) The Central Government may, by
notification in the Official Gazette, delegate
to the telegraph authority all or any of its
powers under the first proviso to sub-section
(1).
The exercise by the telegraph author-
203
ity of any power so delegated shall be subject
to such restrictions and conditions the
Central Government may, by the notification,
think fit to impose."
159. The arguments before us have proceeded on the footing
that the radio broadcasting and telecasting fall within the
definition of "telegraph", which means that according to
Section 4, the Central Government has the exclusive
privilege and right of establishing, maintaining and working
the radio and television stations and/or other equipment
meant for the said purpose. The power to grant licence to a
third party for a similar purpose is also vested in the
Central Government itself the monopoly-holder. The first
proviso says that the Central Government may grant such a
licence and if it chooses to grant, it can impose such
conditions and stipulate such payments therefor as it thinks
fit. The section is absolute in terms and as rightly
pointed out by the petitioners’ counsel, it does not provide
any guidance in the matter of grant of licence, viz., in
which matters the Central Government shall grant the licence
and in which matters refuse. The provision must, however,
be understood in the context of and having regard to the
times in which it was enacted.
160. In Life Insurance Corporation of India etc. v. Manubhai
D.Shah (1992 (3) S.C.C.637), Ahmadl,J. (as the learned Chief
Justice then was) held that the refusal of Doordarshan to
telecast a film "Beyond Genocide" on Bhopal gas disaster
(which film was certified by censors and had also received
the Golden Lotus Award) on the ground of lacking moderation,
restraint, fairness and balance is bad. The court noted
that while the Doordarshan conceded that the film depicted
the events faithfully, it failed to point out in whathttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 83 of 109
respects it lacked in moderation etc. Merely because it was
critical of government, it was held, Doordarshan cannot
refuse to telecast it. It was pointed out pertinently that
the refusal to telecast was not based upon the ground that
the list of award-winning films was long and that having
regard to inter se priorities among them, it was not
possible to telecast the film or that the film was not
consistent with the accepted norms evolved by Doordarshan.
In this connection, the learned Judge, speaking for the
Bench, observed:
"The words "freedom of speech and expression"
must, therefore, be broadly construed to
include the freedom to circulate one’s views
by words of mouth or in writing or through
audio-visual instrumentalities. 11,
therefore, includes the right to propagate
one’s views through the print media or through
any other communication channel e.g. The radio
and the television. Every citizen of this
free country, therefore, has the right to air
his or her views through the printing and/or
the electronic media subject of course to
permissible restrictions imposed under Article
19(2) of the Constitution. The print media,
public educators, so VItal to the growth of a
healthy democracy. Freedom to air one’s views
is the lifeline of any democratic institution
and any attempt to stifle, suffocate or gag
this right would sound a death-knell to de-
mocracy and would help usher in autocracy or
dictatorship. It cannot be gainsaid that
modern communication mediums advance public
interest by informing the public of the events
and developments that have taken place and
thereby educating the voters, a role
considered significant for the vibrant
functioning of a democracy. Therefore, in any
set-up, more so in a democratic set-up like
ours, dissemi-
204
nation of news and views for popular con-
sumption is a must and any attempt to deny the
same must be frowned upon unless it falls
within the mischief of Article 19(2) of the
Constitution. It follows that a citizen for
propagation of his or her ideas has a right to
publish for circulation his views in
periodicals, magazines and journals or through
the electronic media since it is well known
that these communication channels are great
purveyors of news and views and make consid-
erable impact on the minds of the readers and
viewers and are known to mould public opinion
on vital issues of national importance. Once
it is conceded, and it cannot indeed be
disputed, that freedom of speech and
expression includes freedom of circulation and
propagation of ideas, there can be no doubt
that the right extends to the citizen being
permitted to use the media to answer the
criticism levelled against the view propagated
by him. Every free citizen has an undoubted
right to lay what sentiments he pleases before
the public; to forbid this, except to the
extent permitted by Article 19(2), would be anhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 84 of 109
inroad on his freedom. This freedom must,
however, be exercised with circumspection and
care must be taken not to trench on the rights
of other citizens or to jeopardise public
interest. It is manifest from Article 19(2)
that the right conferred by Article 19(1)(a)
is subject to’ imposition of reasonable
restrictions in the interest of, amongst
others, public order, decency or morality or
in relation to defamation or incitement to an
offence. It is, therefore, obvious that
subject to reasonable restrictions placed
under Article 19(2) a citizen has a right to
publish, circulate and disseminate his views
and any attempt to thwart or deny the same
would offend Article 19(1)(a)."
(Emphasis added)
161. Similarly, it was held in Odyssey Communications
Pvt.Ltd. v. Lokvidayan Sanghatana & Ors. (1988 Suppl.(1)
S.C.R.486):
"It can no longer be disputed that the right
of a citizen to exhibit films on the
Doordarshan subject to the terms and con-
ditions to be imposed by the Doordarshan is a
part of the fundamental right of freedom of
expression guaranteed under Article 19(1)(a)
of the Constitution of India which can be
curtailed only under circumstances which are
set out in clause (2) of Article 19 of the
Constitution of India. The right is similar
to the right of a citizen to publish his views
through any other media such as newspapers,
magazines, advertisement boardings etc. sub-
ject to the terms and conditions of the owners
of the media. We hasten to add that what we
have observed here does not mean that a
citizen has a fundamental right to establish a
private broadcasting station, or television
centre. On this question, we reserve our
opinion. It has to be decided in an
appropriate case."
The- Court held that since the Union of India and
Doordarshan have failed to produce any material to show that
"the exhibition of the serial was prima facie prejudicial to
community", the refusal cannot be sustained.
162. Be that as it may, by virtue of Section 4, radio and
television have remained a monopoly of the Central
Government Though in the year 1990, Parliament enacted the
’Prasar Bharati (Broadcasting Corporation of India) Act,
1990, it never came into force because the Central Government did not choose to issue a notification appointing
the date (from which the Act shall come into force) as
contemplated by Section 1(3) of the said Act. Be that as it
may, Government monopoly over broadcasting media is nothing
unusual and it is
205
not solely because of the fact that India was not an
independent country, or a democracy, until 1947-50. Even in
well-established democracies, the position has been the
same, to start with, as would be evident from a brief resume
of the broadcasting history in those countries which we may
now proceed to examine. It would help us understand how the
freedom of speech and expression is understood in various
democracies with reference to and in the context of right to
broadcast and telecast - compendiously referred to here-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 85 of 109
inafter as broadcasting.
Broadcasting Law in other Countries:
163. The history of broadcasting in United States and
other European countries has been basically different,
perhaps because of historical factors besides constitutional
principles. In the United States, courts have regarded
freedom of speech almost entirely as a liberty against the
State, while the constitutional courts in Europe have looked
upon it as a value which may sometimes compel the government
to act to ensure the right. Constitutions of most of the
countries in western Europe, e.g Germany, Italy and France
are of post World War-II vintage whereas the First Amendment
to the United States Constitution is more than 200 years
old. These modem European Constitutions cast an obligation
upon their governments to promote broadcasting freedom and
not merely to refrain from interfering with it. The
Constitution of Germany expressly refers to the right to
broadcast as part of freedom of speech and expression. So
far as the United Kingdom is concerned, the development
there has to be understood in the context of its peculiar
constitutional history coupled with the fact that it has no
written constitution. Even so, freedom of thought and
expression has been an abiding faith with that nation. It
has been a refuge for non-conformists and radical thinkers
all over the world - a fact, which does not beg any proof
And yet broadcasting in all these countries was a State or a
public monopoly to start with. Only much later have these
countries started licensing private broadcasting stations.
The main catalyst for this development has been Article 10
of the European Convention on Human Rights which guarantees
freedom of expression to all the citizens of the member
countries and refers specifically to radio and television.
It says:
"10(1) Everyone has the right to freedom of
expression. This right shall include freedom
to hold opinions and to receive and import
information and ideas without interference by
public authority and regardless of frontiers.
This Article shall not prevent States from
requiring the licensing of broadcasting,
television or cinema enterprises.
(2)The exercise of these freedoms, since it
carries with it duties and responsibilities,
may be subject to such formalities,
conditions, restrictions or penalties as are
prescribed by law and are necessary in a
democratic society, in the interests of na-
tional security, territorial integrity or pub-
lic safety, for the prevention of disorder or
crime, for the protection of health or morals,
for the protection of the reputation or rights
of others, for preventing the disclosure of
information received in confidence, or for
maintaining the authority and impartiality of
the judiciary."
(Emphasis added)
More about this provision later.
164. In the United States, of course, radio and television
have been operated by
206
private undertakings from the very beginning. As pointed
out by the United States Supreme Court in Columbia
Broadcasting System v. Democratic National Committee [(1973)
412 U.S.94 - 36 L.Ed.2d.772], at the advent of the radio,
the government had a choice either to opt for governmenthttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 86 of 109
monopoly or government control and that it chose the latter.
The role of the government has been described as one of an
overseer" and that of the licensee as a "public trustee".
The position obtaining in each country may now be noted
briefly.
UNITED KINGDOM*:
165. The first licence to operate eight radio stations was
granted to British Broadcasting Company (BBC) in 1922. In
1927, British Broadcasting Company was replaced by British
Broadcasting Corporation. The Sykes Committee, appointed in
1920s, considered the overall state control of radio
essential in view of its influence on public opinion but
rejected operation of the medium by the State. The other
committee appointed in 1920s, viz., Crawford Committee, also
recommended that radio should remain a public monopoly in
contra-distinction to the United States system of ’free and
uncontrolled transmission’. It, however, recommended that
the government company should be reorganised as a commission
either under
*This part of the judgment dealing with the
broadcasting law obtaining in United Kingdom
and other European countries is drawn largely
from the Book "Broadcasting Law A Comparative
Study" (1993 Edition) by Eric Barendt, Goodman
Professor of Media Law, University College,
London and his article "The influence of the
German and Italian Constitutional courts on
their National Broadcasting systems",
published in ’Public Law, Spring 1991’.
a statute or as a public company limited by guarantee. In
1927, a Royal Charter was granted with a view to ensure the
independence of BBC, which charter has been renewed from
time to time. It prohibits the BBC from expressing its own
opinion on current political and social issues and from
receiving revenue from advertisement or commercial
sponsorship. The power to give directions is reserved to
the government. In 1935, the Corporation was licensed by
the Post-Master General to provide a public television
service, which was introduced in the following year. The
monopoly of BBC continued till 1954. In that year, the
British Parliament enacted the Television Act, 1954 establishing the Independent Television Authority (ITA) to
provide television broadcasting services additional to those
of the BBC. The function of the Authority was to enter into
contracts with programme companies for the broadcast of
commercial programmes. In 1972, ITA was redesignated as
Independent Broadcasting Authority (IBA). In 1984, IBA
acquired powers in respect of direct broadcasting by
satellite.
166.The Peacock Committee appointed in 1980s to examine the
question whether BBC should be compelled to take advertising, rejected the idea but advocated deregulation of
radio and television. The government accepted the proposal
and, accordingly, the Parliament enacted the Broadcasting
Act, 1990. Section 1 established the Independent Television
Commission (ITC) with effect from January 1, 1991 in the
place of IBA and the Cable Authority. The ITC is vested
with the power to licence and regulate non-BBC
207
television services including Channels 3 and 4 and the
proposed Channel 5 besides cable and satellite services.
Section 2 requires that the ITC discharge its functions in
the manner it considers best to ensure a wide range of TV
programme services and also to ensure that the programmes
are of high quality and cater to a variety of tastes andhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 87 of 109
interests. In 1991, ITV decided to grant 16 new channels 3
licences to private bodies with effect from January 1, 1993.
The allocation was to be made by calling for tenders - the
highest bidder getting it - subject, of course, to the
bidder satisfying the qualifying criteria. The eligibility
criteria prescribed guards against granting licences to nonEEC nationals, political bodies, religious bodies and advertising agencies. It also guards against concentration of
these licences in the hands of few individuals or bodies.
Sections 6 and 7 impose strict programme controls on the
licencees while Sections 8 and 9 regulate the
advertisements. The programme controls include political
impartiality, eschewing of excessive violence, due regard
for decency and good taste among others. The programmes
should not also offend religious feelings of any community.
Section 10 provides for government control over licenced
services. Section 11 provides for monitoring by ITC of the
programmes broadcast by licenced services. It is obvious
that this Act has no application to BBC, which is governed
by the Royal Charter, as stated hereinabove. The Act has
also set up a Radio Authority to exercise comparable powers
over radio services. It is said that this Act ultimately
imposed as many restraints on broadcasters freedom as there
were in force earlier.
FRANCE:
167. Para II of the Declaration of the Rights of Man adopted
by the National Assembly in 1789** - affirmed in the preamble to the Constitution of the Fifth Republic (1958) and
treated as binding on all branches of the government - guarantees freedom of dissemination of thought and opinion.
This provision - the child of the French Revolution - has
greatly influenced the development of broadcasting freedom
in that country. Initially, licences were granted to
private radio stations to function along side the public
network but with the out-break of the WorldWar 11, the
licences of private broadcasters were suspended and later
revoked. From 1945 to 1982, broadcasting remained a State
monopoly. The government exercised tight control over the
radio. An ordinance issued in 1959 legalised government
control. In 1964, public monopoly was re-affirmed by law.
In 1974, the State Organisation, Office de la
radiodiffusion-television Francaise (ORTF) was divided into
seven separate institutions catering to radio and television
broadcasts in the country. This was done with a
**Para 11 reads: "XI. The unrestrained com-
munication of thoughts and opinions being one
of the most precious rights of man, every
citizen may speak, write and publish freely,
provided he is responsible for the abuse of
this liberty in cases determined by law. " At
the same time, Para 4 sets out the limitation
implicit in all freedoms comprised in the
concept of political liberty. It
says: ....... The exercise of the natural
rights of every man has no other limits than
those which are necessary to secure to every
other man the free exercise of the same
rights; and these limits are determinable only
by the law."
208
view to introduce competition among the public television
companies. The government exercised a significant degree of
control over all these units. No private broadcasting was
allowed since broadcasting services were regarded as
essentially public. The State monopoly in the matter ofhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 88 of 109
broadcasting was upheld by Conseil constitutionnel
(Constitutional Court) in 1978. In 1982, however, a
significant change took place. The State recognised the
right of citizens to have a "free and pluralist broadcasting
system". Even so, permission to institute a private
broadcasting station was dependent on prior authorization of
the government. This provision was upheld by the Conseil
Constitutionnel as compatible with Para 11 of the
Declaration of the Rights of Man, In 1985, the law was
amended providing for private broadcasting and television
stations. In 1986, the government sought to privatise one
of the public television channels which immediately provoked
controversy. The Conseil constitutionnel ruled (in 1986)
that principle of pluralism of sources of opinion was one of
constitutional significance, against which the concrete
provisions of the proposed Bill must be assessed II observed
that access to a variety of views was necessary for the effective guarantee of the freedom of speech protected by the
Declaration of the Rights of man. At the same time, it
found nothing wrong with the decision to favour private
television but held that it was for the Parliament to
determine the appropriate structure for broadcasting in the
light of freedom of communication and other relevant
constitutional values, like public order, rights of other
citizens and pluralism of opinion. The law was accordingly
amended. Wherever private broadcasting is allowed it is
governed by a contract between the applicant and the
administrative authority.
GERMANY.
168. After the occupying authorities withdrew from West
Germany in 1949, the pattern that emerged was one of nine
regional public broadcasting organisations. They formed
into an association, the Arbeitsgemeinschaft der offentlichtechtlichen Rundfunkanstalten der Bundersrepublik
Deutschland (ARD), in 1950 and under its auspices the first
public television channel was formed. Article 5 of the
Basic Law of 1949 states, "(E)very one shall have the right
freely to express and disseminate his opinion by speech,
writing, and pictures and freely to inform himself from
generally accessible sources. Freedom of the press and
freedom of reporting by means of broadcasts and films are
guaranteed. There shall be no censorship." In a decision
rendered in 1961, the Federal Constitutional Court held
inter alia that in view of the shortage of frequencies and
the heavy cost involved in establishing a TV station, public
broadcasting monopoly is justifiable, though not constitutionally mandatory. It held further that broadcasting,
whether public or private, should not be dominated by State
or by commercial forces and should be open for the
transmission of a wide variety of opinion. [(12 BVerfGE 205-
196)]. There was a long battle before private commercial
broadcasting was introduced. Many of the States in West
Germany were opposed to private commercial broadcasting.
The Constitutional Court ruled in 1981 The Third Television
Case - 57 BVer EfG 295) that private broadcasting was not
inconsistent with Article 5 of the Basic Law but it observed
that unlike the press, private
209
broadcasting should not be left to market forces in the
interest of ensuring that a wide variety of voices enjoy
access to it. It recognised that the regulation of private
broadcasting can be different in content from the regulation
applying to public broadcasting. In course of time, private
television companies came into existence but in the
beginning they were confined to cable. In the Fourthhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 89 of 109
Television Case decided in 1986 (73 BVerfGE 118), the court
held in the present circumstances, the principal public
service functions of broadcastings are the responsibility of
the public institutions whereas private broadcasters may be
subjected to less onerous programme restrictions. Only
after the decision of the Constitutional Court in 1987 were
the private companies allocated terrestrial frequencies. It
appears that notwithstanding the establishment of private
companies , it is the public broadcasting companies which
dominate the scene and attract more advertisement revenue.
The German constitutional court has exercised enormous
influence in shaping the contours of broadcasting law. It
has interpreted the broadcasting freedom in a manner wholly
different from the United States Supreme Court casting an
obligation upon the State to act to ensure the right to all
citizens.
ITALY:
169. In Italy too, the broadcasting was under State control,
to start with. In 1944, Radio audizioni Italia (RAI) was
created having a monopoly in broadcasting. It still holds
the concession for public radio and broadcasting. Article
21(1) of the Italian Constitution, 1947 provides that
"(E)veryone has the right to express himself freely
verbally, in writing, and by any other means". This
provision was relied upon by potential private broadcasters
in support of their claim for setting up private commercial
stations. In a decision rendered in 1960 (Decision 59/60
(1960) Giurisprudenza Constituzionale 759) the
Constitutional Court of Italy upheld RAI’s monopoly with
reference to Article 43 of the Constitution which enables
legislation to reserve (or expropriate subject to compensation) for the state, businesses which are concerned
with vital public service or are natural monopolies and
which are of pre-eminent public interest. It denied the
right of applicants to establish private radio or television
stations. it-opined that private broadcasting would
inevitably be dominated by a few corporations and,
therefore, not in public interest, an aspect which was
reaffirmed in a decision in 1974. (Decision 225/74 (1974)
Giurisprudenza Constituzionale 1775). It held that
broadcasting provides an essential service in a democratic
society and could legitimately be reserved for a public
institution, provided certain conditions were met. In
particular, it said that radio and television should be put
under parliamentary, and not executive control to ensure
their independence and that rules should be drawn up to
guarantee the access of significant political and social
groups. Accordingly, the Parliament enacted the Legge in
April, 1975 which provided for a greater control by a
Parliamentary Commission over the programmes and their
content. In 1976, the Constitutional Court ruled (Decision
202/76 (1976) Giurisprudenza Constituzionale 1276) that
while at the national level, the monopoly of RAI is valid,
at the local level, it is not, since at the local level
there is no danger of private monopolies or oligopolies
emerging a hope belied by subsequent developments.
210
This ambiguous decision resulted in establishment of a large
number of private radio stations in Italy notwithstanding
the re-affirmation of RAI’s national monopoly in 1981 by the
court. One of the major rather the largest - private
television and radio networks which thus came into existence
is the $7 billion Fininvest Company, controlled by Silvio
Berlusconi (the Ex-Prime Minister of Italy, who resigned in
December, 1994). It owns three major TV networks in Italy.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 90 of 109
This development prompted the Constitutional Court, in 1988,
to call for a prompt and comprehensive regulation of private
broadcasting containing adequate anti-trust and other antimonopolistic provisions to safeguard pluralism.
Accordingly, a law was made in 1990 which devised a system
for licensing private radio and television stations.
AUSTRIA:
170. Broadcasting has been a State monopoly in Austria
throughout. This monopoly was challenged -as inconsistent
with Article IO of the European Convention before the
Austrian Constitutional Court which repelled the attack with
reference to clause (2) of Article 10. It held that
inasmuch as a law made by the State, viz., Constitutional
Broadcasting Law had introduced a licencing system within
the meaning of the last sentence in Article 10(1) of the
Convention and since the said system was intended to secure
objectivity and diversity of opinions, no further need be
done. It held that the Austrian Broadcasting Corporation
with the status of an autonomous public law corporation is a
sufficient compliance not only with the national laws but
also with Article 10 of the Convention and that granting
licence to every applicant would defear the objectives of
pluralism, diversity of views and range of opinions
underlying the said Austrian law. Several individuals and
organisations, who were refused television/radio licences,
lodged complaints with the European Human Rights Commission,
which referred the matter for the opinion of the European
Human Rights Court [EHRC] (at Strasbourg). The court held
that the refusal to consider the applications for licence
amounted to a violation of Article 10 (Informationsverein
Lentia & Ors. v. Austria - 15 Human Rights law Journal 31 -
judgment dated 24th November, 1993). The reasoning of the
Court is to be found in paragraphs 38 and 39 which read
thus:
"38. The Court has frequently stressed the
fundamental role of freedom of expression in a
democratic society, in particular where,
through the press, it serves to impart
information and ideas of general interest,
which the public is moreover entitled to
receive (see, for example, mutatis mutandis,
the Observer and Guardian v. the United
Kingdom judgment of 26 November 1991, Series A
no.216, pp. 29-30, $59 - 13 HRLJ 16 (1992)).
Such an undertaking cannot be successfully
accomplished unless it is grounded in the
principle of pluralism, of which the State is
the ultimate guarantor. This observation is
especially valid in relation to audio-visual
media, whose programmes are often broadcast
very widely.
39. 0 ’all the means of ensuring that these
values are respected, a public monopoly is the
one which imposes the greatest restrictions on
the freedom of expression, namely the total
impossibility of broadcasting otherwise than
through a national station and, in some cases,
to a very limited extent through a local cable
station. The far reaching character of such
211
restrictions means that they can only be
justified where they correspond to a pressing
need.
As a result of the technical progress made
over the last decades, justification of thesehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 91 of 109
restrictions can no longer today be found in
considerations relating to the number of
frequencies and channels available; the
Government accepted this. Secondly, for the
purposes of the present case they have lost
much of their raison d’etre in view of the
multiplication of foreign programmes aimed at
Austrian audiences and the decision of the
Administrative Court to recognise the
lawfulness of their retransmission by cable
(see paragraph 21 above). Finally and above
all, it cannot be argued that there are no
equivalent less restrictive solutions; it is
sufficient by way of example to cite the
practice of certain countries which either
issue licences subject to specified conditions
of variable content or make provision for
forms of private participation in the ac-
tivities of the national corporation."
The Court then dealt with the argument that "Austrian market
was too small to sustain a sufficient number of stations to
avoid regroupings and the constitution of the private
monopolies" and rejected it in the following words:
"42. The court is not persuaded by the
Government’s argument. Their assertions are
contradicted by the experience of several
European States, of a comparable size of
Austria, in which the coexistence of private
and public stations, according to rules which
vary from country to country and accompanied
by measures preventing the development of
private monopolies, shows the fears expressed
to be groundless."
171. The Court finally concluded;
"43. In short, like the Commission, the Court
considers that the interferences in issue were
disproportionate to the aim pursued and were,
accordingly, not necessary in a democratic
society. There has therefore been a violation
of Article IO."
172. In our opinion, the reasoning of EHRC is unacceptable
for various reasons which we shall set out at the proper
stage.
OTHER WESTERN EUROPEAN COUNTRIES.
173. In Denmark, private broadcasting was permitted by
Legislation enacted in 1985. In Portugal, private
broadcasting was allowed only in 1989, by amending the
Constitution. In Switzerland too, private broadcasting has
been allowed only recently. Private broadcasting is,
however, subject to strict programme control.
UNITED STATES OF AMERICA:
174. In the United States, there was no law regulating
the establishment and working of broadcasting companies till
1927. In that year, Radio Act, 1927 was enacted by Congress
creating the Federal Radio Commission with authority to
grant three year licences to operate radio stations on an
assigned frequency. In the year 1934, the Congress enacted
the Federal Communications Act. This Act placed the telephone and wireless communications under one authority, viz.,
Federal Communications Commission (FCC). The Commission had
the authority to assign frequency for particular areas, to
prescribe the nature of the service to be provided for
different types of stations and to decide licence applications. The only guideline issued to the Commission was
that it should exercise its powers keeping in view the "pub-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 92 of 109
212
lic interest, convenience and necessity".. It is under these
guidelines that the FCC evolved the Fairness Doctrine in
1949. Notwithstanding the First Amendment, the United
States Supreme Court held that the freedom of speech did not
entail a right to broadcast without a licence. It held:
"unlike other modes of expression, radio inherently is not
available to all" vide N.B.C. v. U.S. [319 US 190 (1943)].
The Fairness Doctrine was approved by the Supreme Court in
Red Lion Broadcasting Company v. F.C.C. [395 US 367 (1969)].
The Court observed: "Although broadcasting is clearly a
medium affected by a First Amendment interest, differences
in the characteristics of news media justify differences in
the First Amendment standards applied to them Where there
are substantially more individuals who want to broadcast
than there are frequencies to allocate, it is idle lo posit
an unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or
publish ... those who are licenced stand no better than
those to whom licences are refused A license permits
broadcasting, but the licensee has no constitutional right
to be the one who holds the license or to monopolize a radio
frequency to the exclusion of his fellow citizens .... The
people as a whole retain their interest in free speech by
radio and their collective right to have the medium function
consistently with the ends and purposes of the First
Amendment. It is the right of the viewers and listeners,
not the right of the broadcasters which is paramount. It is
the right of the public to receive suitable access to
social, political, esthetic moral and other ideas and experiences which is crucial here In 1967’70, public
broadcasting was established on a national basis through the
institution of the Corporation for Public Broadcasting
(CPB), viz., the Public Broadcasting Service (PBS) for
television and National radio service. The CPB is funded by
appropriations made by the Congress. In 1978, the Supreme
Court affirmed in FCC. v. National Citizens Committee for
Broadcasting (436 U.S.775) that:
"in making [its] licensing decisions between
competing applicants, the Commission has long
given "primary significance" to
"diversification of control of the media of
mass communications." This policy is
consistent with the statutory scheme and with
the First Amendment goal of achieving "the
widest possible dissemination of information
from diverse and antagonistic sources."*** Pe-
titioners argue that the regulations are in-
valid because they seriously restrict the
opportunities for expression of both broad-
casters and newspapers. But as we stated in
Red Lion, "to deny a station licence because
’the public interest’ requires it ’is not a
denial of free speech’." The regulations are a
reasonable means of promoting the public
interest in diversified mass communications;
thus they do not violate the First Amendment
rights of those who will be denied broadcast
licenses pursuant to them.
175. It is significant to notice the statement that "to deny
a station licence because ’the public interest’ requires it
’is not a denial of free speech"’ - a holding to which we
shall have occasion to advert to later. Yet another
relevant observation of Burger,C.J. is to the following
effect:http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 93 of 109
*** As far back as 1948, the Court held in US
v. Paramount Pictures (92 L. Ed. 126 1) that
no monopoly can be countenanced in the matter
of First Amendment rights.
213
"The Commission (F.C.C.) was justified in
concluding that the public interest in
providing access lo market place of "ideas and
expressions " would scarcely be served by a
system so heavily weighted in favour of the
financially affluent or those with access to
wealth........
(Emphasis added)
176. In 1970s, however, it was argued that programming
restraints were contrary to the First Amendment besides
being unproductive. and that broadcasting licencees should
enjoy the same rights as newspaper editors and owners. In
course of time. the government moved towards deregulation of
broadcasting and ultimately in 1987 the Fairness doctrine
was repealed by FCC. An attempt by Congress to restore the
said rule by an enactment was vetoed by the President.
177. Having examined the systems obtaining in the United
States and major west European countries, Eric Barendt says:
"These developments illustrate the widely
divergent approaches to broadcasting
regulation in the United States and (for the
most part) in Europe. This is partly an
aspect of the more sceptical attitude to
government and to administrative regulation
which has prevailed in the USA, at any rate.
in the last twenty years. The First Amendment
has been interpreted as conferring on
broadcasters rights, which have not been
derived from the comparable provisions in
continental countries. Another explanation is
that in the USA private commercial
broadcasting enjoyed for a long time a de
facto monopoly, while in Britain, France,
Germany and Italy there was a public monopoly.
It is interesting that there has been a
continuity to US broadcasting law, which
(perhaps sadly) is not found in these European
jurisdictions. The Federal Communications
Act has remained in force since its passage in
1934, though it has been amended on a handful
of occasions."
(Eric Barendt: Broadcasting Law - Page31)
178. We may now proceed to examine what does "Broadcasting
freedom" mean and signify?
BROADCASTING FREEDOM Meaning and content of.
179. There is little doubt that broadcasting freedom is
implicit in the freedom of speech and expression. The
European Court of Human Rights also has taken the view that
broadcasting like press is covered by Article 10 of the
Convention guaranteeing the right to freedom of expression.
But the question is what does broadcasting freedom mean?
Broadly speaking, broadcasting freedom can be said to have
four facets, (a) freedom of the broadcaster, (b) freedom of
the listeners/viewers to a variety of view and plurality of
opinion, (c) right of the citizens and groups of citizens to
have access to the broadcasting media, and (d) the right to
establish private radio/TV stations. We shall examine them
under separate heads.
(a) FREEDOM OF THE BROADCASTER:
180. The first facet of the broadcasting freedom is freedomhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 94 of 109
from State or Governmental control, in particular from the
censorship by the Government. As the Peacock Committee put
it, pre-publication censorship has no place in a free
society. Pre-publication censorship is prohibited in Germany by Article 5 of the Basic Law. This principle applies
in equal measure both to public and private broadcasting.
It is, however, necessary to clarify here that public
214
broadcasting is not to be equated with State broadcasting.
Both are distinct. Broadcasting freedom in the case of public broadcasting means the composition of these bodies in a
manner so as to genuinely guarantee their independence. In
Germany, the Constitutional Court has ruled that freedom
from State control requires the legislature to frame some
basic rules to ensure that Government is unable to exercise
any influence over the selection, content or scheduling of
programmes. Laws providing to the contrary were held bad.
Indeed, the court also enunciated certain guidelines for the
composition and selection of the independent broadcasting
authorities on the ground that such a course is necessary to
ensure freedom from Government control. It should be noted
that an unfettered freedom for licensees to select which
programmes appear on their schedule to the complete
disregard of the interests of public appears more like a
property right than an attribute of freedom of speech. It
is for this reason that the German constitutional court
opined in 1981 (57 BVerfGE 295) and in 1987 (73 BVerfGE II
8) that television and radio is an instrument of freedom
serving the more fundamental freedom of speech in the interest of both broadcasters and the public. The court
opined that broadcasting freedom is to be protected insofar
as it’s exercise promotes the goals of free speech, i.e., an
informed democracy and lively discussion of a variety of
views. The freedom of broadcaster cannot be understood as
merely an immunity from government intervention but must be
understood as a freedom to safeguard free speech right of
-all the people without being dominated either by the State
or any commercial group. This is also the view taken by the
Italian and French courts.
(b) LISTENERS/VIEWERS RIGHT.
181. Broadcasting freedom involves and includes the right of
the viewers and listeners who retain their interest in free
speech. It is on this basis that the European courts have
taken the view that restraints on freedom of broadcasters
are justifiable on the very ground of free speech. It has
been held that freedom of expression includes the right to
receive information and ideas as well as freedom to impart
them. "The free speech interests of viewers and listeners
in exposure to a wide variety of material can best be safeguarded by the imposition of programme standards, limiting
the freedom of radio and television companies. What is
important according to this perspective is that the
broadcasting institutions are free to discharge their
responsibilities of providing the public with a balanced
range of programmes and a variety of views. These free
speech goals require positive legislative provision to
prevent the domination of the broadcasting authorities by
the government or by private corporations and advertisers,
and perhaps for securing impartiality........
182. The Fairness Doctrine evolved by FCC and approved by
the United States Supreme Court in Red Lion protected the
interest of persons by providing a right of reply to
personal attacks. But difficulties have arisen in the
matter of enforcing the listeners’/viewers’ rights through
courts.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 95 of 109
(c) ACCESS TO BROADCASTING:
183. The third facet of broadcasting freedom is the freedom
of individuals and groups of individuals to have access to
broadcasting media to express their views.
215
The first argument in support of this theory is that public
is entitled to hear range of opinions held by different
groups so that it can make sensible choices on political and
social issues. In particular, these views should be exposed
on television, the most important contemporary medium. It
is indeed the interest of audience that justified the
imposition of impartiality rules and positive programme
standards upon the broadcasters. The theoretical foundation
for the claim for access to broadcasting is that freedom of
speech means the freedom to communicate effectively to a
mass audience which means through mass media. This is also
the view taken by our court as pointed out supra.
184. An important decision on this as’pect is that of the
United States Supreme Court in Columbia Broadcasting System
v. Democratic National Committee [412 US 94 (1973)]. The
CBS denied to Democrats and a group campaigning for peace in
Vietnam any advertising time to comment upon contemporary
political issues. Its refusal was upheld by the FCC, but
the District of Columbia Circuit Court of Appeals ruled that
an absolute ban on short pre-paid editorial advertisements
infringed the First Amendment and constituted impermissible
discrimination. The Supreme Court, however, allowed the
plea of CBS holding that recognition of a right of access of
citizens and groups would be inconsistent with the
broadcasters’ freedom. They observed that if such right
were to be recognised, wealthy individuals and pressure
groups would have greater opportunities to purchase
advertising time. It rejected the "view that every potential
speaker is ’the best judge of what the listening public
ought to hear ". (Burger,C.J.) Some Judges expressed the
opinion that the broadcaster enjoyed the same First
Amendment rights as the newspapers whereas the minority
represented by Brennan and Marshall,JJ. was of the view that
freedom of groups and individuals to effective expression
justified recognition of some access rights to radio and
television.
185. It appears that this aspect has been debated more
intensively in Italy. The Italian constitutional court held
that the monopoly of RAI can be justified only on certain
conditions, one of them being that access must be allowed so
far as possible to the political, religious and social
groups, representing various strands of opinion in society.
It opined that statutory provision for access was required
by Article 21 of the Constitution guaranteeing freedom of
expression. The Italian courts viewed access as a goal or a
policy rather than a matter- of fundamental right while at
the same time protecting the individual’s right of reply.
On this aspect, Barendt says: There are also practical
objections to access rights. It may be very difficult to
decide, for example, which group are to be given access, and
when and how often such programmes are shown. There is a
danger some groups will be unduly privileged........
(d)THE RIGHTS TO ESTABLISH PRIVATE BROADCASTING STATIONS:
186. The French Broadcasting Laws of 1982 and 1989 limit the
right of citizens to establish private broadcasting stations
in the light of the necessity to respect individual rights,
to safeguard pluralism of opinion and to protect public
interests such as national security and public order. No
private radio or television channel or sta-
216http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 96 of 109
tion can be established without prior authorisation from the
regulatory body, Conseil superieur de l’audiovisuel. In
Britain, the ITC and the Radio Authority must grant the
necessary licence for establishing a private television or
radio station. In none of the European countries is there
an unregulated right to establish private radio/television
station. It is governed by law. Even in United States, it
requires a licence from FCC.
187. Let us examine the position obtaining in Italy and
Germany where constitutional provisions corresponding to
Article 19(1)(a) - indeed more explicit in the case of
Germany - obtain. Notwithstanding Article 21, referred to
hereinbefore, the Italian Constitutional Court continues to
hold that public monopoly of broadcasting is justified,
atleast at national level till adequate anti-trust laws are
enacted to prevent the development of private media oligopolies. In fact, this principle has been applied in the
case of local broadcasting and private broadcasting allowed
at local level. The Italian Constitutional Court is of the
view that Article 21 of the Italian Constitution does no
doubt confer right to speak freely but this right is to be
exercised by "using means already at one’s disposal, not a
right to use public property, such as the airwaves ". The
analogy with the right to establish private schools was held
to be a weak one and rejected by the Constitutional Court.
More particularly, it is of the view that it is impossible
to justify recognition of a right which only a handful of
individuals and media companies can enjoy in practice.
188. In Germany too, the Constitutional Court has not
recognised a right in the citizens to establish private
television/radio stations at their choice. The question was
left open in what is called the Third Television case. This
question has, however, lost its significance in view of the
laws made in 1980s permitting private broadcasting. What is
relevant is that even after the enactment of the said laws,
the Constitutional Court held in Sixth Television case
(decided in 1991) that establishment of private broadcasting
stations is not a matter of right but a matter for the State
(legislature) to decide. If the State, legislation does
permit such private broadcasting, it has been held at the
same time, it cannot impose onerous programme and
advertising restrictions upon them so as to imperil their
existence.
189. So far as the United States is concerned,where
licencing of private broadcasting stations has been in vogue
since the very beginning, the Supreme Court said in C.B.S.
v. Democratic Committee [36 L.Ed.2d.772 (1973)] that
"(B)ecause the broadcast media utilize a valuable and limited public resource, there is also present an unusual order
of First Amendment values". It then affirmed the holding in
Red Lion that "no one has a First Amendment right to a
license or to monopolize a radio frequency; to deny a
station license because ’the public interest’ requires it
’is not a denial of free speech ... ****. The
**** It is true that reference to "the public
interest" in the above extract must be under-
stood in the light of the guidance provided to
F.C.C., which inter alia directs the F.C.C. to
perform its functions consistent with public
interest, the fact yet remains that even the
guidance so provided was understood to be
within the ambit of First Amendment and
consistent with the free speech right guaran-
teed by it. It was held in National Broad-
casting Company v. United States (1943 319http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 97 of 109
U.S. 190) that the guidance provided to F.C.C.
to exercise its powers "as public convenience,
interest or necessity requires" did not
violate the First Amendment.
217
court also affirmed that "it is idle to posit an
unabridgeable First Amendment right to broadcast comparable
to the right of every individual to speak, write or publish." It is relevant to mention here that the distinction
made between the Press and the broadcasting media vis-a-vis
the First Amendment has been justified by an American jurist
Bollinger as based on First Amendment values and not on
notions of expediency. He says that in "permitting
different treatment of the two institutions...... (the)
Court has imposed a compromise - a compromise, however, not
based on notions of expediency, but rather on a reasoned and
principled accommodation of competing First Amendment values". [75 Michigan law Review 1, 26-36 (1976) quoted in
"Constitutional Law" by Stone, Seidman and others (Second
Edition) at 1427-28].
190. It is true that with the advances in technology, the
argument of few or limited number of frequencies has become
weak. Now, it is claimed that an unlimited number of
frequencies are available. We shall assume that it is so.
Yet the fact remains that airwaves are public property that
they are to be utilised to the greatest public good; that
they cannot be allowed to be monopolised or hijacked by a
few privileged persons or groups; that granting license to
everyone who asks for it would reduce the right to nothing
and that such a licensing system would end up in creation of
oligopolies as the experience in Italy has shown - where the
limited experiment of permitting private broadcasting at the
local level though not at the national level, has resulted
in creation of giant media empires and media magnates, a
development not conducive to free speech right of the
citizens. It would be instructive to note the lament of the
United States Supreme Court regarding the deleterious effect
the emergence of media empires had on the freedom of Press
in that country. In Miami Herald Publishing Company v. Tornillo (1974 - 418 U.S. 24 1), the Court said:
"Access advocates submit that .... the press
of today is in reality very different from
that known in the early years of our national
existence.....
The elimination of competing newspapers in
most of our large cities, and the
concentration of control of media that results
from the only newspaper’s being owned by the
same interests which own a television station
and a radio station, are important components
of this trend towards concentration of control
of outlets to inform the public.
The result of these vast changes has been to
place in a few hands the power to inform the
American people and shape public opinion.
Much of the editorial opinion and commentary
that is printed is that of syndicated
columnists distributed nationwide and, as a
result, we are told, on national and world
issues there tends to be a homogeneity of
editorial opinion, commentary, and
interpretive analysis. The abuses of bias and
manipulative reportage are, likewise, said to
be the result of the vast accumulations of
unreviewable power in the modem media empires.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 98 of 109
In effect, it is claimed, the public has lost
any ability to respond or to contribute in a
meaningful way to the debate on issues....
The obvious solution, which was available to
dissidents at an earlier time when entry into
publishing was relatively inexpensive, today
would be to have additional newspapers. But
the same economic factors which have caused
the disappearance of vast numbers of
metropoli-
218
tan newspapers, have made entry into the
market place of ideas served by the print
media almost impossible. It is urged that the
claim of newspapers to be "surrogates for the
public" carries with it a concomitant
fiduciary obligation to account for that
stewardship. From this premise it is reasoned
that the only effective way to insure fairness
and accuracy and to provide for some
accountability is for government to take
affirmative action. The First Amendment
interest of the public in being informed is
said to be in peril because the "marketplace
of ideas " is today a monopoly controlled by
the owners of the market........
(Emphasis added)
Of course, there is another side to this picture: the media
gaints in United States are so powerful that Government
cannot always manipulate them - as was proved in the
Pentagon Papers’ case [New York Times v.United States -
(1971) 403 U.S.713)] and in the case of President’s Claim of
Privilege [United States v. Nixon - (1974) 418 U.S.683)].
These considerations - all of them emphasised by Constitutional Courts of United States and major west-European
countries - furnish valid grounds against reading into
Article 19(1)(a) a right to establish private broadcasting
stations, whether permanent or temporary, stationary or
mobile. Same holding holds good for earth stations and
other telecasting equipment which the petitioners want to
bring in through their chosen agencies. As explained
hereinbefore, there is no distinction in principle between a
regular TV station and an earth station or other telecasting
facility. More about this aspect later.
191. Having noticed the judicial wisdom of the
Constitutional Courts in leading democracies, we may turn to
the issues arising herein.
The Nature of grounds specified in Article
19(2) of the Constitution
192. A look at the grounds in clause (2) of Article 19,
in the interests of which a law can be made placing
reasonable restrictions upon the freedom of speech and
expression goes to show that they are all conceived in the
national interest as well as in the interest of society.
The first set of grounds, viz., the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States and public order are grounds
referable to national interest whereas the second set of
grounds, viz., decency, morality, contempt of court,
defamation and incitement to offence are conceived in the
interest of society. The inter-connection and the interdependence of freedom of speech and the stability of society
is undeniable. They indeed contribute to and promote each
other. Freedom of speech and expression in a democracy
ensures that the change desired by the people, whether inhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 99 of 109
political, economic or social sphere, is brought about
peacefully and through law. That change desired by the
people can be brought about in an orderly, legal and
peaceful manner is by itself an assurance of stability and
an insurance against violent upheavals which are the hallmark of societies ruled by dictatorships, which do not
permit this freedom. The stability of, say, the British
nation and the periodic convulsions witnessed in the
dictatorships around the world is ample proof of this
truism. The converse is equally true. The more stable the
society is, the more scope, it provides for exercise of
right of free speech and expression. A society which feels
secure can and does permit a greater latitude than a society
whose stability is in
219
constant peril. As observed by Lord Sumner in Bowman v.
Secular Society Ltd. (1917 A.C.406):
"The words, as well as the acts, which tend to endanger
society differ from time to time in proportion as society is
stable or insecure in fact, or is believed by its reasonable
members to be open to assault. In the present day meetings
or processions are held lawful which a hundred and fifty’
years ago would have been deemed seditious, and this is not
because the law is weaker or has changed, but because, the
times having changed, society is stronger than before.....
\. After all, the question whether a given opinion is a
danger to society is a question of the times and is a
question of fact. I desire to say nothing that would limit
the right of society to protect itself by process of law
from the dangers of the movement, whatever that right may
be, but only to say that, experience having proved dangers
once thought real to be now negligible, and dangers once
very possibly imminent to have now passed away, there is
nothing in the general rules as to blasphemy and
irreligion .... which prevents us from varying their
application to the particular circumstances of our time in
accordance with that experience.
193. It is for this reason that our founding fathers while
guaranteeing the freedom of speech and expression provided
simultaneously that the said right cannot be so exercised as
to endanger the interest of the nation or the interest of
the society, the case may be. This is not merely in the
interest of nation and society but equally in the interest
of the freedom of speech and expression itself, the reason
being the mutual relevance and inter-dependence aforesaid.
194. Reference may also be made in this connection to
the decision of the United States Supreme Court in F.C.C. v.
National Citizens Committee for Broadcasting [(1978) 436
U.S.775], referred to hereinbefore, where it has been held
that "to deny a station licence because the public interest
requires it is riot a denial of free speech". It is
significant that this was so said with reference to First
Amendment to the United States Constitution which guarantees
the freedom of speech and expression in absolute terms. The
mason is obvious. The right cannot rise above the national
interest and the interest of society which is but another
name for the interest of general public. It is true that
Article 19(2) does not use the words "national interest",
"interest of society" or "public interest" but as pointed
hereinabove, the several grounds mentioned in clause (2) are
ultimately referable to the interests of the nation and of
the society. As observed by White,j., speaking for the
United States Supreme Court, in Red Lion:
"It is the purpose of the First Amendment to
preserve an uninhibited marketplace of ideashttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 100 of 109
in which truth will ultimately prevail, rather
than to countenance monopolization of that
market, whether it be by the Government itself
or a private licensee. Associated Press v
United States, 326 US 1, 20, 89 L Ed 2013,
2030, 65 S Ct 1416 (1945); New York Times Co.
v Sullivan, 376 US 254, 270, 11 L Ed 2d 686,
700, 84 S Ct 710, 95 ALR2d 1412 (1964); Abrams
v United States, 250 US 616, 630, 63 L Ed
1173, 1180, 40 S Ct 17 (1919) (Holmes,J., dis-
senting). "[S]peech concerning public affairs
is more Om self-expression; it is the essence
of self-government." Garrison v Louisiana, 379
US 64, 74-75, 13 L Ed 2d 125, 133, 85 S Ct 209
(1964). See Brennan, The Supreme Court and
the
220
Meiklejohn interpretation of the First
Amendment, 79 Hary L Rev 1 (1965). It is the
right of the public to receive suitable access
to social, political, esthetic, moral, and
other ideas and experiences which is crucial
here."
(Emphasis added)
195. We may have to bear this in mind while delineating
the parameters of this freedom. It would also be
appropriate to keep in mind the observations in Columbia
Broadcasting System v. Democratic National Committee (36
L.Ed.2d.772), Burger,C.J. quoted the words of Prof, Chafee
to the following effect:
"Once we -get away from the bare words of the
First Amendment, we must construe it as part
of a Constitution which creates a government
for the purpose of performing several very
important tasks. The First Amendment should be
interpreted so as not to cripple the regular
work of the government.
196. We must also bear in mind that the obligation of
the State to ensure this right to all the citizens of the
country (emphasised hereinbefore) creates an obligation upon
it to ensure that the broadcasting media is not monopolised,
dominated or hijacked by privileged, rich and powerful
interests. Such monopolisation or domination cannot but be
prejudicial to the freedom of speech and expression of the
citizens in general - an aspect repeatedly stressed by the
Supreme Court of United States and the Constitutional Courts
of Germany and Italy.
197. The importance and significance of television in the
modern world needs no emphasis. Most people obtain the bulk
of their information on matters of contemporary interest
from the broadcasting medium.
The television is unique in the way in which it intrudes
into our homes. The combination of picture and voice makes
it an irresistibly attractive medium of presentation. Call
it idiot box or by any other pejorative name, it has a
tremendous appeal and influence over millions of people.
Many of them are glued to it for hours on end each day.
Television is shaping the food habits, cultural values,
social mores and what not of the society in a manner no
other medium has done so far. Younger generation is
particularly addicted to it. It is a powerful instrument,
which can be used for greater good as also for doing immense
harm to the society. It depends upon how it is used. With
the advance of technology, the number of channels available
has grown enormously. National borders have becomehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 101 of 109
meaningless. The reach of some of the major networks is
international they are not confined to one country or one
region. It is no longer possible for any government to
control or manipulate the news, views and information available to its people. In a manner of speaking, the
technological revolution is forcing inter-nationalism upon
the world. No nation can remain a fortress or an island in
itself any longer. Without a doubt, this technological
revolution is presenting new issues, complex in nature - in
the words of Burger,C.J., "complex problems with many hard
questions and few easy answers". Broadcasting media by its
very nature is different from Press. Airwaves are public
property. The fact that a large number of
frequencies/channels are available does not make them
anytheless public property. It is the obligation of the
State under our constitutional system to ensure that they
are used for public good.
198. Now, what does this public good mean and signify in the
context of the
221
broadcasting medium? In a democracy, people govern
themselves and they cannot govern themselves properly unless
they are aware - aware of social, political, economic and
other issues confronting them. To enable them to make a
proper judgment on those issues, they must have the benefit
of a range of opinions on those issues. Right to receive
and impart information is implicit in free speech. This
plurality of opinions, views and ideas is indispensable for
enabling them to make an informed judgment on those issues
to know what is their true interest, to make them
responsible citizens, to safeguard their rights as also the
interests of society and State. All the constitutional
courts of leading democracies, reference to which has been
made hereinbefore, have recognised and reiterated this
aspect. This is also the view of the European Court of
Human Rights. In Castells v. Spain (14 EHRR 445) - quoted
in 1994 Public Law at 524 - the court held that free
political debate is "at the very core of the concept of a
democratic society".
199. From the standpoint of Article 19(1)(a), what is
paramount is the right of the listeners and viewers and not
the right of the broadcaster - whether the broadcaster is
the State, public corporation or a private individual or
body. A monopoly over broadcasting, whether by government
or by anybody else, Is inconsistent with the free speech
right of the citizens. State control really means
governmental control, which in turn means, control of the
political party or parties in power for the time being.
Such control is bound to colour the views, information and
opinions conveyed by the media. The free speech right of
the citizens is better served in keeping the broadcasting
media under the control of public. Control by public means
control by an independent public corporation or
corporations, as the case may be, formed under a statute.
As held by the Constitutional Court of Italy, broadcasting
provides an essential service in a democratic society and
could legitimately be reserved for a public institution,
provided certain conditions are met. The corporation(s)
must be constituted and composed in such a manner as to
ensure its independence from government and its impartiality
on public issues. When presenting or discussing a public
issue, it must be ensured that all aspects of it are
presented in a balanced manner, without appearing to espouse
any one point of view. This will also enhance the
credibility of the media to a very large extent; ahttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 102 of 109
controlled media cannot command that level of credibility.
For the purpose of ensuring the free speech rights of the
citizens guaranteed by Article 19(1)(a), it is not necessary
to have private broadcasting stations, as held by the
Constitutional Courts of France and Italy. Allowing private
broadcasting would be to open the door for powerful
economic, commercial and political interests, which may not
prove beneficial to free speech right of the citizens - and
certainly so, if strict programme controls and other
controls are not prescribed. The analogy with press is
wholly inapt. Above all, airwaves constitute public
property. While, the freedom guaranteed by Article 19(1)(a)
does include the right to receive and impart information, no
one can claim the fundamental right to do so by using or
employing public property. Only where the statute permits
him to use the public property, then only - and subject to
such conditions and restrictions as the law may impose - he
can use the public property, viz., airwaves. In other
words, Article 19(1)(a) does not
222
enable a citizen to impart his information, views and
opinions by using the airwaves. He can do so without using
the airwaves. It need not be emphasised that while
broadcasting cannot be effected without using airwaves,
receiving the broadcast does not involve any such use.
Airwaves, being public property must be utilised to advance
public good. Public good lies in ensuring plurality of
opinions, views and ideas and that would scarcely be served
by private broadcasters, who would be and who are bound to
be actuated by profit motive. There is a far greater
likelihood of these private broadcasters indulging in misinformation, disinformation and manipulation of news and
views than the government-controlled media, which is at
least subject to public and parliamentary scrutiny. The
experience in Italy, where the Constitutional Court allowed
private broadcasting at the local level while denying it at
the national level should serve as a lesson; this limited
opening has given rise to giant media oligopolies as
mentioned supra. Even with the best of programme controls
it may prove counter-productive at the present juncture of
our development; the implementation machinery in our country
leaves much to be desired which is shown by the
ineffectiveness of the several enactments made with the best
of the intentions and with most laudable provisions; this is
a reality which cannot be ignored. It is true that even if
private broadcasting is not allowed from Indian soil, such
stations may spring up on the periphery of or outside our
territory, catering exclusively to the Indian public.
Indeed, some like stations have already come into existence.
The space, it is said, is saturated with communication
satellites and that they are providing and are able to pro
vide any number of channels and frequencies. More
technological developments must be in the offing. But that
cannot be a ground for enlarging the scope of Article 19(1
(a). It may be a factor in favour of allowing private
broadcasting - or it may not be. It may also be that the
Parliament decides to increase the number of channels under
the Doordarshan, diversifying them into various fields,
commercial, educational, sports and so on. Or the Parliament may decide to permit private broadcasting, but if it
does so permit, it should not only keep in mind the
experience of the countries where such a course has been
permitted but also the conditions in this country and the
compulsions of technological developments and the realities
of situation resulting from technological developments. Wehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 103 of 109
have no doubt in our mind that it will so bear in mind the
above factors and all other relevant circumstances. We make
it clear, we are not concerned with matters of policy but
with the content of Article 19(1)(a) and we say that while
public broadcasting is implicit in it, private broadcasting
is not. Matters of policy are for the Parliament to
consider and not for courts. On account of historical factors, radio and television have remained in the hands of the
State exclusively. Both the networks have been built up
over the years ’With public funds. They represent the
wealth and property of the nation. It may even be said that
they represent the material resources of the community
within the meaning of Article 39(b). They may also be said
to be ’facilities’ within the meaning of Article 38, They
must be employed consistent with the above articles and
consistent with the constitutional policy as adumbrated in
the preamble to the Constitution and Parts III and IV. We
must reiterate that the Press whose freedom is implicit in
Article 19(1)(a) stands
223
on a different footing. The petitioners - or the potential
applicants for private broadcasting licenses - cannot invoke
the analogy of the press. To repeat, airwaves are public
property and better remain in public hands in the interest
of the very freedom of speech and expression of the citizens
of this country.
200. It would be appropriate at this stage to deal with the
reasoning of the European Court of Human Rights in the case
of Informationsverein Lentia. The first thing to be noticed
in this behalf is the language of Article 10(1) of the
European convention, set out hereinbefore. Clause (1) of
Article 10 not only says that everyone has the right to
freedom of expression but also says that the said right
shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. The clause then adds
that Article 10 shall not, however, prevent the State from
requiring the licensing of broadcasting, television or
cinema enterprises. Clause (2) of course is almost in para
materia with clause (2) of Article 19 of our Constitution.
What is, however, significant is that Article 10(1)
expressly conferred the right "to receive and impart
information and ideas without interference by public
authority". The only power given to public authority, which
in the context means the State/Government, is to provide the
requirement of license and nothing more. It is this feature
of clause (1) which has evidently influenced the decision of
the European court. The decision cannot, therefore, be read
as laying down that the right of free expression by itself
implies and includes the right to establish private
broadcasting stations. It is necessary to emphasise another
aspect. While I agree with the statement in Para 38 to the
effect that freedom of expression is fundamental to a
democratic society and that the said right "cannot be
successfully accomplished unless it is grounded in the
principle of pluralism, of which the State is the ultimate
guarantor", I find it difficult to agree that such pluralism
cannot be ensured by a public/statutory corporation of the
nature already in existence in Austria and that it is
necessary to provide for private broadcasting to ensure
pluralism, as held in Para 39. The fact that as a result of
technological advances, the argument of limited number of
frequencies is no longer available, cannot be a ground for
reading the right to private broadcasting into freedom of
expression. The decision as such is coloured by thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 104 of 109
particular language of clause (1) of Article 10, as stated
above. I must also say that the last observation in Para 39
viz., that there can be other less restrictive solutions is
also not a ground which we can give effect to under the
legal system governing us. The question in such cases
always is whether the particular restriction placed is
reasonable and valid and not whether other less restrictive
provisions are possible. I may also mention that the
arguments which weighed with other constitutional courts,
viz., that airwaves represent public property and that they
cannot be allowed to be dominated or monopolised by powerful
commercial, economic and political interests does not appear
to have been argued or considered by the European Court. As
has been emphasised by other constitutional courts, the very
free speech interest of the citizens requires that the
broadcasting media is not dominated or controlled by such
powerful interests.
201. There is yet another aspect of the
224
petitioners’ claim which requires to be explained.
According to their own case, they have sold the telecasting
rights with respect to their matches to a foreign agency
with the understanding that such foreign agency shall bring
in its own equipment and personnel and telecast the matches
from the Indian territory. Once they have sold their
rights, the foreign agency is not their agent but an
independent party. It is a principal by itself The foreign
agency cannot claim or enforce the right guaranteed by
Article 19(1)(a). Petitioners cannot also claim because
they have already sold the rights. In other words, the
right to telecast is no longer with them but with the
foreign firm which has purchased the telecasting rights.
For this reason too, the petitioners’ claim must be held to
be unacceptable.
202. Having held that Article 19(1)(a) does not encompass
the right to establish, maintain or run broadcasting
stations or broadcasting facilities, we feel it necessary to
clarify the true purport of the said freedom in the context
of broadcasting media. This is necessary to ensure that I
am not misunderstood or misinterpreted. Indeed, what I
propose to say hereafter flows logically from what I have
said heretofore.
203. It has been held by this Court in Life Insurance
Corporation v. Manubhai Shah
that the freedom of speech and
expression guaranteed to the citizens of this country
"Includes the right to propagate one’s views through print
media or through any other communication channel, e.g., the
radio and the television. Every citizen of this free
country, therefore, has the right to air his or her views
through the printing course to permissible restrictions
imposed under Article 19(2) of the Constitution". It has
also been held in the said decision that "the print media,
the radio and the tiny screen play the role of public educators, so vital to the growth of a healthy democracy.
Freedom to air one’s views is the lifeline of any democratic
institution and any attempt to stifle, suffocate or gag this
right would sound a death-knell to democracy and would help
usher in autocracy or dictatorship..... It follows that a
citizen for propagation of his or her ideas has a right to
publish for circulation his views in periodicals, magazines
and journals or through the electronic media since it is
well known that these communication channels are great
purveyors of news and views and make considerable impact on
the minds of the readers and viewers and are known to mould
public opinion on vital issues of national importance." Tohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 105 of 109
the same effect is the holding in Odyssey Communications
referred to supra. Once this is so, it follows that no
monopoly of this media can be conceived for -the simple
reason that Article 19(2) does not permit State monopoly
unlike clause (6) of Article 19 vis-a-vis the right
guaranteed by Article 19(1)(g).
204. All the Constitutional Courts whose opinions have been
referred to hereinbefore have taken the uniform view that in
the interest of ensuring plurality of opinions, views, ideas
and ideologies, the broadcasting media cannot be allowed to
be under the monopoly of any one - be it the monopoly of
Government or or an individual, body or Organisation.
Government control in effect means the control of the political party or parties in power for the time being. Such
control is bound to colour and/or the electronic media
subject of and in some cases, may even distort the
225
news, views and opinions expressed through the media. It is
not conducive to free expression of contending viewpoints
and opinions which is essential for the growth of a healthy
democracy. I have said enough hereinbefore in support of
the above propositions and we do not think it necessary to
repeat the same over again here. I have also mentioned
hereinbefore that for ensuring plurality of views, opinions
and also to ensure a fair and balanced presentation of news
and public issues, the broadcast media should be placed
under the control of public, i.e., in the hands of statutory
corporation or corporations, as the case may be. This is
the implicit command of Article 19(1)(a). I have also
stressed the importance of constituting and composing these
corporations in such a manner that they ensure impartiality
in political, economic and social and other matters touching
the public and to ensure plurality of views, opinions and
ideas. This again is the implicit command of Article
19(1)(a). This medium should promote the public interest by
providing information, knowledge and entertainment of good
quality in a balanced way. Radio and Television should
serve the role of public educators as well. Indeed, more
than one corporation for each media can be provided with a
view to provide competition among them (as has been done in
France) or for convenience, as the case may be.
205. Now, coming to the Indian Telegraph Act, 1885, a look
at its scheme and provisions would disclose that it was
meant for a different purpose altogether. When it was
enacted, there was neither Radio***** nor, of course,
television, though it may be that radio or television fall
within the definition of "telegraph" in Section 3(1).
Except Section 4 and the definition of the expression
"telegraph", no other provision of the Act appears to be
relevant to broadcasting media. Since the validity of
Section 4(1) has not been specifically challenged before us,
we decline to express any opinion thereon. The situation is
undoubtedly unsatisfactory. This is the result of the
legislation in this country not keeping pace with the
technological developments. While all the democracies in
the world have enacted laws specifically governing the
broadcasting media, this country has lagged behind, rooted
in the Telegraph Act of 1885 which is wholly inadequate and
unsuited to an important medium like radio and television,
i.e., broadcasting media. It is absolutely essential, in
the interests of public, in the interests of the freedom of
speech and expression guaranteed by Article 19(1)(a) and
with a view to avoid confusion, uncertainty and consequent
litigation that Parliament steps in soon to fill the void by
enacting a law or laws, as the case may be, governing thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 106 of 109
broadcasting media, i.e., both radio and television media.
The question whether to permit private broadcasting or not
is a matter of policy for the Parliament to decide. If it
decides to permit it, it is for the Parliament to decide,
subject to what conditions and restrictions should it be
permitted. (This aspect has been dealt with supra.) The fact
remains that private broadcasting, even if allowed, should
not be left to market forces, in the interest of ensuring
that a wide variety of voices enjoy access to it.
SUMMARY
206. In this summary too, the expres-
***** It was only in 1895 that G.Marconi suc-
ceeded in transmitting wireless signals be-
tween sending and receiving points without the
use of connecting wires over a distance of tw
o
kilometers.
226
sion "broadcasting media" means the electronic media now
represented and operated by AIR and Doordarshan and not any
other services.
I (a).Game of cricket, like any other sports event,provides
entertainment. Providing entertainment is implied in
freedom of speech and expression guaranteed by Article
19(1)(a) of the Constitution subject to this rider that
where speech and conduct are joined in a single course of
action, the free speech values must be balanced against
competing societal interests, The petitioners (CAB and BCCI)
therefore have a right to organise cricket matches in India,
whether with or without the participation of foreign teams.
But what they are now seeking is a license to telecast their
matches through an agency of their choice - a foreign agency
in both the cases - and through telecasting equipment
brought in by such foreign agency from outside the country.
In the case of Hero Cup Matches organised by CAB, they
wanted uplinking facility to INTELSAT through the government
agency VSNL also. In the case of later international
matches organised by BCCI they did not ask for this facility
for the reason that their foreign agent has arranged direct
uplinking with the Russian satellite Gorizon. In both
cases, they wanted the permission to import the telecasting
equipment along with the personnel to operate it by moving
it to places all over the country wherever the matches were
to be played. They claimed this license, or permission, as
it may be called, as a matter of right said to be flowing
from Article 19(1)(a) of the Constitution. They say that
the authorities are bound to grant such license/ permission,
without any conditions, all that they are entitled to do, it
is submitted, is to collect technical fees wherever their
services are availed, like the services of VSNL in the case
of Hero Cup Matches. This plea is in principle no different
from the right to establish and operate private telecasting
stations. In principle, there is no difference between a
permanent TV station and a temporary one; similarly there is
no distinction in principle between a stationary TV facility
and a mobile one; so also is there no distinction between a
regular TV facility and a TV facility for a given event or
series of events. If the right claimed by the petitioners
(CAB and BCCI) is held to be constitutionally sanctioned
one, then each and every citizen of this country must also
be entitled to claim similar right in respect of his event
or events, as the case may be. I am of the opinion that no
such right flows from Article 19(1)(a).
(b)Airwaves constitute public property and must be utilised
for advancing public good. No individual has a right tohttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 107 of 109
utilise them at his choice and pleasure and for purposes of
his choice including profit. The right of free speech
guaranteed by Article 19(1)(a) does not include the right to
use airwaves, which are public property. The airwaves can
be used by a citizen for the purpose of broadcasting only
when allowed to do so by a statute and in accordance with
such statute. Airwaves being public property, it is the
duty of the State to see that airwaves are so utilised as to
advance the free speech right of the citizens which is
served by ensuring plurality and diversity of views,
opinions and ideas. This is imperative in every democracy
where freedom of speech is assured. The free speech right
guaranteed to every citizen of this country does not
encompass the right to use these airwaves at his choosing.
Conceding such a right would be
227
detrimental to the free speech rights of the body of
citizens inasmuch as only the privileged few - powerful
economic, commercial and political interests - would come to
dominate the media. By manipulating the news, views and
information, by indulging in misinformation and
disinformation, to suit their commercial or other interests,
they would be harming and not serving - the principle of
plurality and diversity of views, news, ideas and opinions.
This has been the experience of Italy where a limited right,
i.e., at the local level but not at the national level was
recognised. It is also not possible to imply or infer a
right from the guarantee of free speech which only a few can
enjoy.
(c)Broadcasting media is inherently different from Press or
other means of communication/information. The analogy of
press is misleading and inappropriate. This is also the
view expressed by several Constitutional Courts including
that of the United States of America.
(d) I must clarify what I say; it is that the right claimed
by the petitioners (CAB and BCCI) - which in effect is no
different in principle from a right to establish and operate
a private TV station - does not flow from Article 19(1)(a);
that such a right is not Implicit in it. The question
whether such right should be given to the citizens of this
country is a matter of policy for the Parliament. Having
regard to the revolution in information technology and the
developments all around, Parliament may, or may not, decide
to confer such right. If it wishes to confer such a right,
it can only be by way of an Act made by Parliament. The Act
made should be consistent with the right of free speech of
the citizens and must have to contain strict programme and
other controls as has been provided for example, in the
Broadcasting Act, 1991 in the United Kingdom. This is the
implicit command of Article 19(1)(a) and is essential to
preserve and promote plurality and diversity of views, news,
opinions and ideas.
(e) There is an inseparable inter-connection between
freedom of speech and the stability of the society, i.e.,
stability of a nation-State. They contribute to each other.
Ours is a nascent republic. We are yet to achieve the goal
of a stable society. This country cannot also afford to
read into Article 19(1)(a) an unrestricted right to
licensing (right of broadcasting) as claimed by the
petitioners herein.
(f) In the case before us, both the petitioners have sold
their right to telecast the matches to a foreign agency.
They have parted with the right. The right to telecast the
matches, including the right to import, install and operate
the requisite equipment is thus really sought by the foreignhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 108 of 109
agencies and not by the petitioners. Hence, the question of
violation of their right under Article 19(1)(a) resulting
from refusal of license/permission to such foreign agencies
does not arise.
2. The Government monopoly of broadcasting media in this
country is the result of historical and other factors. This
is true of every other country, to start with. That India
was not a free country till 1947 and its citizens did not
have constitutionally guaranteed fundamental freedoms till
1950 coupled with the fact that our Constitution is Just
about forty five years into operation explains the
Government monopoly. As pointed out in the body of the
judgment, broadcasting media was a mo-
228
nopoly of the Government, to start with, in every country
except the United States where a conscious decision was
taken at the very beginning not to have State monopoly over
the medium. Until recently, the broadcasting media has been
in the hands of public/statutory corporations in most of the
West European countries. Private broadcasting is
comparatively a recent phenomenon. The experience in Italy
of allowing private broadcasting at local level (while
prohibiting it at national level) has left much to be
desired. It has given rise to powerful media empires which
development is certainly not conducive to free speech right
of the citizens.
3 (a). It has been held by this Court - and rightly - that
broadcasting media is affected by the free speech right of
the citizens guaranteed by Article 19(1)(a). This is also
the view expressed by all the Constitutional Courts whose
opinions have been referred to in the body of the judgment.
Once this is so, monopoly of this medium (broadcasting
media), whether by Government or by an individual, body or
Organisation is unacceptable. Clause (2) of Article 19 does
not permit a monopoly in the matter of freedom of speech and
expression as is permitted by clause (6) of Article 19
vis-a-vis the right guaranteed by Article 19(1)(g).
(b) The right of free speech and expression includes the
right to receive and impart information. For ensuring the
free speech right of the citizens of this country, it is
necessary that the citizens have the benefit of plurality of
views and a range of opinions on all public issues. A
successful democracy posits an ’aware’ citizenry. Diversity
of opinions, views, ideas and ideologies is essential to
enable the citizens to arrive at informed judgment on all
issues touching them. This cannot be provided by a medium
controlled by a monopoly - whether the monopoly is of the
State or any other individual, group or Organisation. As a
matter of fact, private broadcasting stations may perhaps be
more prejudicial to free speech right of the citizens than
the government controlled media, as explained in the body of
the judgment. The broadcasting media should be under the
control of the public as distinct from Government. This is
the command implicit in Article 19(1)(a). It should be
operated by a public statutory corporation or corporations,
as the case may be, whose constitution and composition must
be such as to ensure its/their impartiality in political,
economic and social matters and on all other public issues.
It/they must be required by law to present news, views and
opinions in a balanced way ensuring pluralism and diversity
of opinions and views. It/they must provide equal access to
all the citizens and groups to avail of the medium.
4. The Indian Telegraph Act, 1885 is totally inadequate to
govern an important medium like the radio and television,
i.e., broadcasting media. The Act was intended for anhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 109 of 109
altogether different purpose when it was enacted. This is
the result of the law in this country not keeping pace with
the technological advances in the field of information and
communications. While all the leading democratic countries
have enacted laws specifically governing the broadcasting
media, the law in this country has stood still, rooted in
the Telegraph Act of 1885. Except Section 4(1) and the
definition of telegraph, no other provision of the Act is
shown to have any relevance to broadcasting media. It is,
therefore,
229
imperative that the parliament makes a law placing the
broadcasting media in the hands of a public/statutory
corporate or the corporations, as the case.may be. This is
necessary to safeguard the interests of public and the
interests of law as also to avoid uncertainty, confusion and
consequent litigation.
5. The CAB did not ever apply for a license under the
first proviso to Section 4 of the Telegraph Act nor did its
agents ever make such an application. The permissions,
clearances or exemption obtained by it from the several
departments (mentioned in judgment) are no substitute for a
license under Section 4(1) proviso. In the absence of such
a license, the CAB had no right in law to have its matches
telecast by an agency of its choice. The legality or
validity of the orders passed by Sri N.Vithal, Secretary to
the Government of India, Telecommunications Department need
not be gone into since it has become, academic. In the
facts and circumstances of the case, the charge of malafides
or of arbitrary and authoritarian conduct attributed to
Doordarshan and Ministry of Information and Broadcasting is
not acceptable. No opinion need be expressed on the
allegations filed by BCCI in these matters. Its
intervention was confined to legal questions only.
6. Now the question arises, what is the position till the
Central Government or the Parliament takes steps as contemplated in Para (4) of the summary, i.e., if any sporting
event or other event is to be telecast from the Indian soil?
The obvious answer flowing from the judgment [and Paras (1)
and (4) of this summary is that the organiser of such event
has to approach the, nodal Ministry as specified in the decision of the Meeting of the Committee of Secretaries held
on November 12, 1993. I have no reason to doubt that such a
request would be considered by the nodal Ministry and the
AIR and Doordarshan on its merits, keeping in view the
public interest. In case of any difference of opinion or
dispute regarding the monetary terms on which such telecast
is to be made, matter can always be referred to an
Arbitrator or a panel of Arbitrators. In case, the nodal
Ministry or the AIR or Doordarshan find such
broadcast/telecast not feasible, then they may consider the
grant of permission to the organisers to engage an agency of
their own for the purpose. Of course, it would be equally
open to the nodal Ministry (Government of India) to permit
such foreign agency in addition to AIR/ Doordarshan, if they
are of the opinion that such a course is called for in the
circumstances.
207. For the above reasons, the appeals, writ petition
and applications are disposed of in the above terms. No
costs.
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