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TMI Blog1995 (2) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 communicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quency 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] 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 restrictions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic 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 affecting 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 pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circulation 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, does 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 preserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Freedom of speech and expression should, 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 news print is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... people. The Union of 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 publish opinion. The communication of ideas could be made, through any medium, newspaper, magazine or movie. But this right is subject to reasonable re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Censorship is permitted mainly on the 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 or conservative outlook. Far from it, they must be responsive to social change and they must go with the current cli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g is another matter altogether and at any rate, the Court is not concerned with its correctness or usefulness to 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 [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights of the petitioner. 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 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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 Constitution-makers employed broad phraseology while the fundamental tights so that they may be able to cater to the needs of a changing societ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the potential of imposing arbitraryand 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 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 exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 attacked. 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 spee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise, by necessity, be barred from the airwaves. This is not to say that the First Amendment is irrelevant to public broad-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 allocating 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thoroughly 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 principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lment. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 national security, territorial integrity or public 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 is 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 restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 so that there are more broadcasting outlets than there are national or local daily newspapers. Dealing with the third reason advocated for giving differential tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 licensing authority, several franchises may be physically accommodated and a wide band cable system may be able to carry upto 30 or 40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rade, 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 frequencies 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vilege 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 India territorial waters and on aircraft within or above India or Indian territorial waters and (b) of telegraphs other than wireless telegraph 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 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 applia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 thinks 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 conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge 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 and 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 reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 events 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 footprints 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 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 cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the 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 broadcaster of the signals and BCCI/CAB or its agency must take the signal from DD alone and (c) Unless the BCCI or CAB accepts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the MIB for the purpose is not a proof of such policy. The said minutes are '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. 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 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay monopolise the 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to organise the sports events and can legitimately be accused of failing in their 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icitly 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/fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreign 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 incidentall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 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 off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 telec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nament. 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/production 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 ! noda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roached 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, 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 bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 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 application. 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. co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 in the writ 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. 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 India, is directed to decide this questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 telecasting within the country, and they were to be treated as host broadcasters so far as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93 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 government departments to telecast. In fact, such a 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dies. 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 BCCI, applied to the VSNL for uplinking facilities for telecasting of the said matches. The VSNL thereafter wrote 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, transmission and telecasting of the 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dio 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, requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnae. 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovember 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izing 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 Telecommunication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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) of the Telegraph Act has been granted in favour of either CAB or TWI. Pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (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 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 infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 particularly, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cies may possibly arise only if Doordarshan and AIR refuse to telecast or 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 agenci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yond 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 what 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conditions 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. subject 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned, 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 dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited 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 advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 communication 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic 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 205196)]. 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 broadcasting should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. This ambiguous decision resulted in establishment of a large number of private radio stations in Italy notwithstanding the re-affirmation of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 these restrictions can no longer today be found in considerations relating to the number of frequencies and channels available; the Government accepted this. Secondly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 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 "public 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 F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest' 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: *** 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. "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 E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taly 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otions 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 gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s " 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 spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sire 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pple 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, so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erprises. 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 necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, magazine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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., broadcast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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